Gen.  Rober 


AND  THE 


Question  of  Treason  and  Perjury. 


A  YINISJ  CATION 


I3ased  Kxcliisively  on  the  Piililio  P.ectvrJs  of 
Kortliern  States  and  Statesrneii. 


Library  of 

The  University  of  North  Carolina 


KENAN  MEMORIAL  COLLECTION 


IN  MEMORY  OF 
WILLIAM  Tnr.MAN 


given  by  ^ 

“  J 

MARY  ^  ^  " 


Devoted 


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THE  LIBRARY  OF  THE 
UNIVERSITY  OF 
north  CAROLINA 


ENDOWED  BY  THE 
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UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


10002566803 


A  VINDICATION 


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s 


c }  ^  I 


FROM  A  NORTHERN  STANDPOINT 


OF 


Gen.  Robt.  E.  Lee 


AND  HIS 

t 

Fellow-Officers  who  Left  the  United 
States  Army  and  Navy  in  i86i, 

FROM  THE 


N0HTHEI[N  CHARGE  OF  TREASON  AND  PERJUI[Y. 


BY 


TALBOT  SWEENEY. 


RICHMOND : 

J.  L.  HILL  PRINTING  COMPANY. 

1890. 


DKDICATIOK 


TO 

* 

Mrs.  Correlia  Mercer  Sweekey 

AND  THE 

R.  K.  IaEE  Camp,  Ko.  i, 

« 

COKFKDERATE  VETERAKS. 

MAY  29t?,  1890. 

I  now  feelingly  and  tremblingly  dedicate  this  humble  little 
book  to  my  beloved  wife  and  the  R.  E.  Lee  Camp  of  Yeterans, 
without  the  knowledge  of  either.  Rothing,  I  am  sure,  could 
be  more  gratifying  to  my  wife  than  to  have  her  name  honor¬ 
ably  associated  forever,  if  possible,  with  the  veterans  of  the 
“  Southern  Confederacy,”  and,  through  them,  with  a  cause  for 
which  she  labored  and  suffered  and  sacrificed  so  much ;  and  all 
this,  too,  so  unostentatiously,  so  uncomplainingly,  and  so  lov¬ 
ingly:  a  cause  which  she  often  says  ‘‘is  not  dead,  but  sleep- 
eth,”  and  which  will  yet  awaken  to  victory  and  to  glory,  and 
guide  into  a  safe  port  an  “  Indissoluble  IJnion  of  Indestructible 
States.”  May  God  in  his  infinite  justice  verify  her  prediction. 


THE  AUTHOR. 


THEjlMERICAN  DOCTRINE  OF  jlLLEGlAN 


PF 

UHi 


FROM  THK 


Deelaration  of  Independenee,  in  1116,  to  the  Civil  Wan  Inaugurated 
by  President /braham  Lineoln_/gainst  the  States 
of  the  South,  in  1861. 


In  the  halls  of  both  houses  of  the  Congress  of  the  United 
States,  in  public  assemblies  of  the  ISTorth,  in  the  public  press 
of  the  Uorth,  in  pulpits  of  the  !Uorth,  and  other  northern 
sources,  private  as  well  as  public,  ever  and  anon,  since  the  late 
civil  war  inaugurated  by  President  Abraham  Lincoln  and  his 
party  adherents  outside  of  Congress,  and  in  gross  violation  of 
the  letter  and  spirit  of  the  Constitution  of  the  United  States, 
against  the  Southern  States,  we  have  heard  and  read,  and  do 
hear  and  read,  the  grave  charge  of  Perjury  and  Treason  pre¬ 
ferred  and  denounced,  without  reason,  but  with  passion,  preju¬ 
dice,  and  hate,  against  those  noble  and  gallant  officers  of  the 
old  Federal  army  and  navy  who  resigned  their  commissions 
in  that  army  and  that  navy,  at  the  call  of  their  respective 
native  Southern  States,  and  fought  for  their  rights  and  their 
sovereignty — chief  among  whom  was  the  lamented  Egbert  E. 
Lee. 

It  is  our  intention  in  what'  we  have  now  to  say  briefly  to 
notice  this  charge,  and  to  justify  the  conduct  of  those  patriotic 
and  brave  officers  in  that  matter,  upon  the  authority  of  North¬ 
ern  States  and  statesmen. 

Endeavoring  to  be  concise;  intending  truthfully  to  perform 
our  promise,  and  to  occupy  you,  in  fact,  for  as  brief  a  period 
as  will  be  possibly  consistent  with  a  lucid  discussion  of  our 
subject,  we  proceed  at  once  with  what  we  have  to  say,  without 


4 


a  formal  introduction,  our  real  desire  and  design  being,  ^'•Fes- 
tinare  in  medias  res,’’  and  not  to  linger  or  loiter  on  the  way. 
The  great  question,  then,  with  General  Lee  and  his  fellow’- 
officers  who  thus  retired  from  the  Federal  army  and  navy  was 
one  of  allegiance,  at  the  time  of  the  commencement  of  hostili¬ 
ties  between  their  respective  States  of  the  South,  and  Abra¬ 
ham  Lincoln  backed  by  the  Republican  States  of  the  ^N’orth. 
As  we  do  not  intend  in  this  discussion  to  argue  upon  our 
present  relations  to  the  Federal  Power  at  Washington,  you 
will  see  that  we  shall  confine  our  remarks  strictly  to  the  period 
anterior  to  and  up  to  the  beginning  of  our  late  civil  war.  For 
it  is  certainly  not  our  intention  here  to  revive  old  issues  or  to 
open  new  issues;  but  simply  to  reason  honestly  and  earnestly 
with  those  who  may  feel  a  real  concern  in  the  grand  ques¬ 
tion  itself,  and  in  the  refutation  of  the  gravest  accusations 
which  can  be  brought  against  human  character  and  conduct. 
Where,  then,  did  the  allegiance  of  the  citizens  of  any  one  ot 
the  United  States  of  America  at  the  beginning  of  our  late  civil 
war  ultimately  reside? 

In  reviewing  the  early  history  of  our  country  we  learn  that 
“thirteen  regularly  organized,  distinct,  and,  to  many  purposes, 
independent  commonwealths  were  connected,  respectively,  by 
the  bond  of  a  sort  of  confederacy,  or  allegiance,  if  you  please 
(the  name  is  immaterial),  with  their  common  mother  country, 
England.  Everything,  however,  that  can  constitute  a  separate 
and  perpetual  body  politic  was  to  be  found  in  each  of  them 
before  the  great  revolution  or  schism— legislation,  judicature, 
and  a  perfect  community  of  interests  among  the  inhabit 

ants  of  a  designated  territory.”  Indeed,  we  find  in  each,  as 

♦  ^ 

distinct  from  every  other  of  the  thirteen,  a  social  compact  as 
clearly  defined  as  it  is  possible  to  conceive.  Even  Judge 
Story,  the  leading  champion  of  consolidation,  out  of  a  due 
regard  to  the  truth  of  history,  has  the  candor  to  say  that, 
“though  the  colonies  had  a  common  origin,  and  owed  a  com¬ 
mon  allegiance,  and  the  inhabitants  of  each  were  British  sub¬ 
jects,  they  had  no  direct  'political  connection  ivith  each  other.  Each 
was  independent  of  all  the  others;  each,  in  a  limited  sense, 


5 


was  sovereign  within  its'  own  territory.  There  was  neither 
alliance  nor  confederacy  between  them.”  Authority  upon  this 
point  might  be  multiplied  ad  infinitum^  but  this  would  be  need¬ 
less  here.  A  dispute  concerning  an  assumed  right  of  England 
over  this  body  politic,  as  just  set  forth,  is  determined  by  a 
majority  of  its  citizens  against  her  demands.  It  is  further 
declared,  by  this  same  majority,  that  this  colony,  if  you  please, 
no  longer  owes  any  allegiance  to  a  government  which  has 
affected  to  set  at  naught  the  principles  of  the  great  constitu¬ 
tional  compact  of  the  British  Empire.  And  this  is  the  decision 
of  the  majority  of  the  people  in  each  of  these  thirteen  bodies 
politic  or  colonies,  acting  each  for  itself  and  upon  its  own 
responsibility.  That  this  was  the  status  of  Virginia  there  can 
be  no  doubt.  Her  resolution  in  convention  on  the  15th  of 
May,  1776,  proves  it:  ‘‘Resolved^  unanimously^  That  the  dele¬ 
gates  appointed  to  represent  this  colony  in  the  G-eneral  Con¬ 
gress  be  instructed  to  propose  to  that  respectable  body  to 
declare  the  United  Colonies  free  and  independent  States, 
absolved  from  all  allegiance  to  or  dependence  upon  the  Crown 
or  Parliament  of  Great  Britain ;  and  that  they  give  the  assent 
of  this  colony  to  such  declaration,  and  to  whatever  measures 
may  be  thought  proper  and  necessary  by  the  Congress  for 
forming  foreign  alliances  and  a  confederation  of  the  colonies,  at 
such  time  and  in  the  manner  as  to  them  shall  seem  best :  provided 
the  power  of  forming  government  for  and  the  regulations  of 
the  internal  concerns  of  each  colony  be  left  to  the  respective 
colonial  legislatures.” 

In  Ware  and  Hylton,  3  Dallas,  199,  Judge  Chase  says :  “I 
consider  the  declaration  of  independence  as  a  declaration,  not 
that  the  United  Colonies  jointly^  in  a  collective  ccqmcity,  were  inde¬ 
pendent  States^  hut  that  each  of  them  was  an  independent  State  ;  that 
is,  that  each  of  them  had  a  right  to  govern  itself  by  its  own 
authority  and  its  own  laws,  ivithout  any  control  from  any  other 
power  upon  earth.” 

It  would  seem  plain,  then,  from  the  opinion  of  this  eminent 
authority  that  the  status  of  the  body  politic  before  described 
was  not  affected  by  the  declaration  of  independence.  It  was 


6 


the  majority  of  the  people  of  each  State,  in  the  name  ot  the 
whole  people  of  each  State,  that  declared  on  the  4th  of  July, 
1776,  the  indisputable  fact  to  the  world,  out  of  a  decent  regard 
to  the  opinions  of  mankind,  that  they  owed  no  allegiance  to 
the  British  Government ;  that  it  had  been  ipso  jure  extingiuished 
by  its  own  infractions  of  the  great  constitutional  compact  of 
the  empire,  and  its  total  disregard  of  the  established  political 
principles  therein  set  forth. 

The  arbitrament  of  the  sword  is  resorted  to,  there  being  no 
common  umpirage  established  by  the  contending  parties  to  the 
dispute,  to  solve  it  peaceably  between  them,  and  the  issue  of 
the  war  is  favorable  to  each  of  the  revolutionary  bodies  politic 
or  colonies,  and  so  confirmed  by  the  treaty  of  peace  between 
the  mother  country  and  the  respective  colonies  by  their  several 
names  and  in  their  several  capacities,  as  free,  sovereign,  and 
independent  States.  Tha  first  article  of  the  provisional  agree¬ 
ment  of  the  30th  of  ISTovember,  1782,  sets  forth  in  clear  and 
explicit  terms  the  following :  “  His  Britannic  Majesty  acknowl¬ 
edges  the  said  United  States,  viz:  Hew  Hampshire,  Massa¬ 
chusetts  Bay,  Bhode  Island  and  Providence  Plantations,  Con¬ 
necticut,  Uew  York,  Yew  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  Yorth  Carolina,  South  Carolina,  and 
Georgia,  to  be  free,  sovereign,  and  independent  States;  that  he 
treats  with  them  as  such,  and  for  himself,  his  heirs,  and  succes¬ 
sors  relinquishes  all  claims  to  the  government,  property,  and 
territorial  right  of  the  same,  and  every  part  thereof.’^  All  con¬ 
nection  with  the  mother  country  ceases,  and  the  internal  gov¬ 
ernment  of  each  State  goes  on  as  it  did  before.  By  what 
process  of  reasoning  is  it  attempted  to  be  made  out  that  the 
majority  of  the  body  politic,  which  had  thus  determined  the 
question  of  allegiance  in  the  name  of  the  State,  and  thus  main¬ 
tained  it  by  force,  had  not  a  right  to  decide  upon  this  most 
vital  concern,  as  it  was  wont  to  do  upon  all  others,  at  the  time 
of  the  breaking  out  of  our  late  civil  war  ? 

As  an  abstract  proposition  it  is  undoubtedly  true  and  univer¬ 
sally  admitted  that  the  allegiance  of  the  citizen,  primary  and 
paramount,  is  due  to  the  State  or  sovereign : — 


7 


That  obedience  from  the  citizen  is  due  to  the  government 
as  it  represents  the  sovereign,  and  as  it  is  ordained  by  the 
sovereign,  and,  of  course,  no  obedience  can  be  claimed  by  the 
government  inconsistent  with  the  allegiance  due  the  sovereign. 

Admit,  then,  the  sovereignty  of  the  State,  and  you  inevitably 
admit  also  its  correlative  right  to  the  allegiance  of  its  citizens. 

In  every  page  of  the  journals  of  the  old  Congress,  both  be¬ 
fore  and  after  the  adoption  of  the  articles  of  confederation,  the 
separate  sovereignty  and  independence  of  each  State  stands  out 
in  bold  relief. 

"We  find  the  same  great  fact  through  the  pages  of  the  fed¬ 
eralist,  which  is  to  the  present  moment  accepted  as  the  book 
of  constitutional  authority.  In  Ho.  31  of  that  great  work, 
prepared  by  Hamilton,  Jay,  and  our  own  Madison,  who  is  re¬ 
membered  as  the  Father  of  the  Constitution  as  it  was,  we  read: 

The  State  governments,  by  their  original  constitutions,  are 
invested  with  complete  sovereignty.’’  Again,  in  Ho.  32 :  The 
State  governments  clearly  retain  all  the  rights  of  sovereignty 
which  they  before  had,  and  which  were  not  by  that  act  exclu¬ 
sively  delegated  to  the  United  States.”  Again,  in  Ho.  52 : 
‘‘  The  rule  that  all  authorities  of  which  the  States  are  not  ex¬ 
plicitly  divested  in  favor  of  the  Union  remain  with  them  in  full 
vigor,  is  clearly  admitted  by  the  whole  tenor  of  the  instrument 
which  contains  the  articles  of  the  proposed  constitution.” 

John  Dickinson,  the  celebrated  friend  and  advocate  of  the 
then  proposed  constitution,  in  Ho.  9  of  his  Fa  bins  Letters, 
asks :  ‘‘  What  bodies  are  there  in  Britain  vested  with  such 
capacities  for  inquiring  into,  checking,  and  regulating  the  con¬ 
duct  of  national  afiairs  as  our  sovereign  States?  ” 

These  extracts  might  be  multiplied  to  clearly  show  that  in 
the  whole  tenor  of  the  discussions  of  the  period  nothing  was 
further  from  the  minds  of  the  friends  of  the  proposed  consti¬ 
tution  than  the  destruction  of  the  State  sovereignties.  If  the 
States  themselves,  by  any  plain,  solemn  act  to  be  found  any¬ 
where  in  the  whole  history  of  legislation,  renounced  their 
sovereign  character  as  States,  and  surrendered  it  and  the  re¬ 
sultant  alleo^iance  due  from  the  citizen  to  the  Federal  Govern- 


8 


ment  as  the  only  paramount  sovereign  at  any  time  prior  to  the 
late  civil  war,  then  we  must  resign  our  argument  as  untenable. 
If  the  fact  existed,  doubtless  it  would  long  since  have  been 
traced  out  to  view  by  the  advocates  of  consolidation.  The 
Constitution  of  the  United  States  surely  nowhere  mentions 
even  once  the  word  sovereign. 

The  Supreme  Court  of  the  United  States  has  over  and  over 
again  affirmed  the  sovereignty  of  the  several  States  of  the 
Union.  “They  (the  several  States)  form  a  confederated  gov¬ 
ernment;  yet  the  several  States  retain  their  individual  sover¬ 
eignties.’’  2  Peters,  579;  12  Wheaton,  334.  Again:  “The 
powers  retained  by  the  States  proceed  not  from  the  people  of 
America,  but  from  the  people  of  the  several  States,  and  remain 
after  the  adoption  of  the  Constitution  what  they  were  before.” 
4  Wheaton,  p.  193.  Judge  Baldwin,  a  most  distinguished  and 
certainly  one  of  the  ablest  justices  of  the  United  States  Supreme 
Court,  expressly  said :  “  The  Constitution  is  a  cession  of  juris¬ 
diction  only,  made  by  the  people  of  a  State.”  Sovereignty,  then, 
according  to  the  great  authority  of  the  Supreme  Court  of  the 
United  States,  was  neither  ceded,  nor  delegated,  nor  surren¬ 
dered,  nor  renounced,  by  the  States  of  this  Union  or  their 
people;  they  ceded  “jurisdiction  only”  by  the  Constitution. 

Senator  Andrew  Johnson,  on  the  18th  day  of  December, 
1860,  declared  in  the  Senate  of  the  United  States  that  “the 
Federal  Government  possesses  no  sovereign  power.  All  its 
powers  are  derivative  and  limited;  and  those  that  are  not 
expressly  granted  are  reserved  to  the  States  respectively.  Con¬ 
gress  has  no  sovereign  power.  All  its  powers  are  derived;  it 
can  exercise  no  single  primitive,  original  power.”  By  this 
authority,  then,  we  see,  the  powers  of  the  Federal  Government 
are  alone  delegated  powers — delegated  by  the  several  States 
which  composed  the  Union  and  established  the  Government 
thereof.  And  we  have  the  high  sanction  of  Mr.  Madison  for 
saying  that  “a  delegated  power  is  not  a  surrendered  power.” 
In  that  same  great  speech  Senator  Johnson  said:  “I  do  not 
believe  the  Federal  Government  has  the  power  to -coerce  a 
State;  for  by  the  eleventh  amendment  to  the  Constitution  of 


9 


the  United  States  it  is  expressly  provided  that  you  cannot  even 
^  put  one  of  the  States  before  one  of  the  courts  of  the  country 
as  a  party.’’  Such  as  I  have  quoted  to  you  is  the  very  language 
of  Senator  Andrew  J ohnson  from  his  seat  in  the  Senate  of  the 
United  States,  delivered  at  the  eve  of  the  great  civil  convul¬ 
sion,  and  who  afterwards,  in  the  very  zenith  of  that  war,  was 
nominated  and  elected  by  the  I^orthern  States  as  Vice-Presi¬ 
dent  of  the  Northern  Union,  on  the  same  ticket  with  their 
chosen  champion,  Abraham  Lincoln,  and  who,  upon  the  death 
of  President  Lincoln,  became  the  President  of  this  same 
Northern  Union,  and,  upon  the  reconstruction  of  the  Union, 
was  President  of  the  wLole  Union,  as  it  again  exists  at  this 
day.  High  authority  on  this  point,  for  the  North,  at  least,  we 
should  say. 

This  was  the  very  position  taken  by  that  ablest  of  American 
statesmen,  President  Buchanan,  and  for  it  he  was  soundly  and 
sorely  condemned  and  denounced  by  the  very  party  that  so 
handsomely  honored  and  rewarded  Senator  Andrew  Johnson. 

Now  let  us  inquire  how  some  of  the  most  prominent  of  our 
northern  sister-States  were  wont  to  answer  the  great  question 
.  of  Allegiance  propounded  in  the  beginning  of  this  discussion. 
And  first  we  will  commence  with  our  sister, 

Massachusetts. 

The  oath  required  by  her  on  March  the  2d,  in  the  year  1780, 
of  her  ofiicers,  was  the  following,  to  wfit:  “I,  A  B,  do  truly 
and  sincerely  acknowledge,  profess,  testify,  and  declare  that 
the  Commonwealth  of  Massachusetts  is,  and  of  right  ought  to 
be,  a  free,  sovereign,  and  independent  State;  and  I  do  swear 
that  I  will  bear  true  faith  and  allegiance  to  the  said  Common¬ 
wealth,  and  that  I  will  defend  the  same  against  traitorous  con¬ 
spiracies  and  all  hostile  attempts  whatsoever.”  We  see  from 
this  part  of  the  oath  administered  by  the  State  of  Massachu¬ 
setts,  after  the  great  Declaration  and  during  the  Confederation^  to 
her  officers,  what  she  thought  about  this  matter  of  Allegiance, 
and  to  whom  it  was  due.  Now  let  us  see  if,  in  her  opinion,  there 
was  any  power  residing  anywhere  that  could  divest  her  of  any 


10 


portion  of  the  allegiance  which  her  citizens  acknowledged  that 
they  owed  to  her.  • 

Upon  this  point  we  will  quote  another  part  of  the  same  oath, 
to  wit:  ‘^And  I  do  further  testify  and  declare  that  no  man  or 
body  of  men  hath  or  can  have  any  right  to  absolve  or  discharge 
me  from  the  obligation  of  this  oath,  declaration,  or  affirma¬ 
tion,’’  &c.,  &c. 

The  portions  of  the  oath  here  quoted  may  he  found  in  the 
first  article  of  the  sixth  chapter  of  the  Constitution  of  Massa- 
setts — March  2,  1780. 

By  an  amendment  hearing  date  June  5,  1821,  Art.  VI.,  the 
following  was  substituted  for  the  oath  of  1780,  to  wit:  ‘‘I, 

A  B,  do  solemnly  swear  that  I  will  bear  true  faith  and  allegiance 
to  the  Commonwealth  of  Massachusetts,  and  will  support  the 
Constitution  thereof.  So  help  me  God.”  In  this  oath,  thirty- 
two  years  after  the  Constitution  of  the  United  States  had  gone 
into  efiect,  we  do  not  find  the  slightest  allusion  either  to  the 
General  Agent  at  Washington  or  to  the  Constitution  of  the 
United  States.  Uo  such  solecism  in  language  as  a  divided 
allegiance  can  we  discover  in  this  form  of  her  adopted  oath, 
but  here  is  a  paramount  and  exclusive  right  to  allegiance  , 
claimed  by  Massachusetts  of  her  citizens,  and  acknowledged 
by  her  citizens  to  Massachusetts.  If  it  was  in  anything  dif¬ 
ferent  from  this  at  the  breaking  out  of  hostilities  we  are  not 
aware  of  it. 

On  the  30th  day  of  January,  1787,  General  Lincoln,  com¬ 
mander-in-chief  of  the  military  forces  of  Massachusetts  in  the 
field  during  the  Shays’  rebellion,  addressed  a  letter  to  Shays 
and  his  officers,  of  a  firm  and  dignified  yet  humane  character, 
informing  them  that  if  they  laid  down  their  arms  and  took 
the  oath  of  allegiance  to  the  Commonwealth  of  Massachusetts 
they  would  be  recommended  to  the  General  Court  for  mercy. 
Uothing  said  here  about  any  allegiance  to  the  old  confedera¬ 
tion  existing  at  that  time. 

Again :  When  she  ratified  the  Constitution  of  the  United 
States  in  her  convention  of  1788  she  did  so  with  a  requisition 
for  the  adoption  of  sundry  suggested  amendments  and  altera- 


11 


tions,  the  chief  of  which,  in  her  own  language,  was,  “  That  it 
be  explicitly  declared  that  all  powers  not  expressly  delegated  by 
the  aforesaid  Constitution  are  reserved  to  the  several  States,  to 
be  by  them  exercised.”  Did  she,  then,  by  her  acceptance  of 
the  Constitution  of  the  Dnited  States,  transfer  to  the  General 
Government  her  right  to  the  exclusive  allegiance  of  her  own 
citizens  ?  If  so,  let  her  point  it  out  in  any  provision  contained 
in  the  said  Constitution.  If  so,  she  will  please  show  to  the 
world  her  explicit  declaration  of  her  express  delegation  of  that 
sovereign  right,  either  in  her  form  of  ratification  of  the  Fede¬ 
ral  Constitution  or  in  the  Constitution  itself. 

Mr.  Samuel  Adams,  a  distinguished  and  honored  son  of  Mas¬ 
sachusetts  in  Revolutionary  times,  pronounced  her  suggested 
amendment,  as  above  recited,  to  he  “  consonant  with  the 
second  article  in  the  present  Confederation,  that  each  State 
retains  its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right  which  is  not  by  the  Confederation 
expressly  delegated  to  the  Dnited  States  in  Congress  assem¬ 
bled.” 

In  the  same  convention  to  consider  the  adoption  of  the  Fed¬ 
eral  Constitution,  Fisher  Ames,  one  of  her  most  cherished 
sons,  who  stood  in  the  first  rank  as  statesman  and  orator,  knd 
who  was  afterwards  a  distinguished  member  of  Congress 
during  the  whole  of  President  Washington’s  administration, 
said  :  “  It  is  necessary  to  premise  that  no  argument  against  the 
new  plan  has  made  a  deeper  impression  than  this,  that  it  will 
produce  a  consolidation  of  the  States.  This  is  an  efiect  which 
all  good  men  will  deprecate.”  Again,  he  says  :  The  senators 
represent  the  sovereignty  of  the  States.”  Again,  he  says :  ‘‘A 
consolidation  of  the  States  woulcl  ensue,  which,  it  is  conceded, 
would  subvert  the  new  Constitution,  and  against  which  this 
very  article,  so  much  condemned,  is  our  best  security.  Too 
much  provision  cannot  be  made  against  a  consolidation.  The 
State  governments  represent  the  wishes,  the  feelings,  and  local 
interests  of  fhe  people.  They  are  the  safeguard  and  ornament 
of  the  Constitution ;  they  will  protract  the  period  of  our  liber¬ 
ties;  they  will  afford  a  shelter  against  the  abuse  of  power,  and 


12 

will  be  the  natural  avengers  of  our  violated  rights.”  And 
once  again  said  he :  “  This^article  seems  to  be  an  excellence  of 
the  Constitution,  and  affords  just  grounds  to  believe  that  it  will 
be  in  practice,  as  in  theory,  a  federal  republic.” 

In  January,  1788,  in  the  Convention  of  Massachusetts, 
alluding  in  his  speech  to  the  checks  upon  any  attempted  usur¬ 
pation  of  the  Federal  agent.  Judge  Parsons  used  the  following 
language:  ‘‘But,  sir,  the  people  themselves  have  it  in  their 
power  effectually  to  resist  usurpation  without  being  driven  to 
an  appeal  to  arms.  An  act  of  usurpation  is  not  obligatory — it 
is  not  law.  Any  man  may  be  justified  in  his  resistance  to  it. 
Let  him  be  considered  as  a  criminal  by  the  G-eneral  Grovern- 
ment,  yet  his  own  fellow-citizens  alone  can  convict  him.  They 
are  his  jury;  and  if  they  pronounce  him  mnocent^  not  all  the 
p.oivers  of  Congress  can  hurt  him ;  and  innocent  they  certainly 
will  pronounce  him  if  the  supposed  law  which  he  resisted  was 
an  act  of  usurpation.”  In  this  opinion  of  Judge  Parsons  the 
authority  to  decide  upon  the  conduct  of  the  “  General  Gov¬ 
ernment”  resides  in  the  citizen  himself;  and  if  he  should 
conclude  to  resist  its  acts,  “  not  all  the  powers  of  Congress  can 
hurt  him.'’^  Why?  Because  the  people  of  the  State  of  Mas¬ 
sachusetts,  if  he  were  a  citizen  of  her’s,  would  interpose  State 
authority  to  shield  him,  to  whom  she  would  consider  her  pro¬ 
tection  to  be  due  in  return  for  the  allegiance  which  she 
demanded  from  him. 

According  to  this  view  of  Judge  Parsons,  there  could  be  no 
allegiance  due  from  the  citizen  of  Massachusetts  to  the  “  Gen¬ 
eral  Government.”  If  so,  the  people  of  Massachusetts  would 
be  guilty  of  a  gross  usurpation  to  attempt  even  to  shield  the 
man  of  Massachusetts  from  flie  penalty  denounced  against  him 
for  daring  to  resist  an  act  of  his  sovereign — the  “  General 
Government.”  For  in  this  case  the  “  General  Government  ” 
would  certainly  be  his  sovereign.  IN'ow,  if  the  citizen,  pur¬ 
suant  to  the  doctrine  laid  down  by  Judge  Parsons  in  the  speech 
referred  to,  has  the  right  to  decide  between  himself  and  the 
“  General  Government,”  surely  he  could  not  hesitate  in  his  re¬ 
sistance  to  that  power  when  the  decision  was  made  by  his  own 


13 


State  that  her  sovereignty  was  being  invaded,  and  the  com¬ 
mand  came  down  to  him  from  her  to  resist  that  invasion  by  all 
the  means  which  she  might  place  at  his  command.  If  he  did 
hesitate,  he  would  stand  to  her  in  precisely  the  relation  in 
which  Tories  stood  in  the  Revolution  of  ^76 ;  and  for  this  vio¬ 
lation  of  his  allegiance  to  her,  treason  would,  indeed^  be  pro¬ 
nounced  against  him.  This,  we  think,  is  the  legitimate  con¬ 
clusion  from  the  position  of  Chief- Justice  Parsons. 

And  just  here  allotv  us  to  remind  the  reader  that  Chief- 
Justice  Parsons,  in  his  day  and  generation,  was  called  “  the 
giant  of  the  law.’’  He  was  a  member  of  the  convention  which 
framed  the  Massachusetts  Constitution,  as  well  as  of  that  which 
ratified  the  Federal  Constitution,  in  which  he  delivered  the 
speech  from  which  we  have  taken  the  above  extract.  He  suc¬ 
ceeded  Chief-Justice  Dana,  and  continued  to  preside  over  the 
deliberations  of  the  Supreme  Court  of  his  State  down  to  the 
close  of  his  life,  on  the  30th  day  of  October,  1813,  at  the  vene¬ 
rable  age  of  sixty-three  (63),  and  left  behind  him  the  reputa¬ 
tion  of  being  one  of  the  most  learned  and  able  judges  that 
ever  appeared  in  any  court.” 

Surely  such  high  authority  on  constitutional  law  cannot  fail 
to  command  the  respect  and  confidence  of  even  the  Massachu¬ 
setts  of  the  present  day. 

This  doctrine  of  State  sovereignty  and  consequent  State 
allegiance  was  carried  so  far  by  that  State  in  those  patriotic  times 
that  in  1789,  when  President  Washington  visited  her,  the 
patriot  Hancock,  at  the  time  her  Governor,  out  of  a  most 
tender  and  scrupulous  regard  to  State  rights  and  State  dignity, 
took  the  position  with  much  feeling,  it  is  told,  that  as  the  rep¬ 
resentative  of  State  sovereignty  in  his  own  dominion  he  should 
be  first  visited  by  the  President  of  the  United  States.  It  is 
true  that  he  yielded  his  own  views  of  etiquette  on  that  occasion, 
but  those  who  knew  him  best  thought  that  he  would  hardly 
have  done  so  in  honor  of  a  less  man  than  George  Washington. 
We  are  told  by  his  biographer  (the  elder  Adams),  in  Sander¬ 
son’s  series,  that  Hancock,  “in  favoring  a  confederate  republic, 
did  not  vindicate  with  less  scrupulousness  the  dignity  of  the 


14 


individual  States;  and  that  in  a  suit  brought  against  the  State 

of  Massachusetts  in  the  court  of  the  United  States,  in  which 

*  • 

he  was  summoned  as  Governor  to  answer  the  prosecution,  he 
resisted  the  process,  and  maintained  inviolate  the  sovereignty 
of  the  Commonwealth.”  And  it  is  worthy  of  notice  that  Mr. 
Adams  states  these  facts  approvingly.  It  was  this  same  John 
Hancock  who,  when  reluctant  to  accept  the  chair  of  the  first 
Continental  Congress  in  1775,  as  the  successor  of  Peyton  Ran¬ 
dolph,  who  was  stricken  with  apoplexy  iii  October,  1775,  Ben. 
Harrison,  of  Virginia,  took  him  up  in  his  arms  and  placed  him 
in  it,  exclaiming  at  the'  same  time,  ^‘We  will  show  Mother 
Britain  how  little  we  care  for  her  by  making  a  Massachusetts 
man  our  president  whom  she  has  excluded  from  pardon  by  a 
public  proclamation.”  It  was  a  high  eulogy,  indeed,  on  him, 
both  as  a  statesman  and  patriot,  that  when  the  British  Govern¬ 
ment  ofiered  pardon  to  all  the  rebels,  as  it  suited  her  to  style 
our  Revolutionary  fathers,  of  all  their  offences,  Hancock  and 
one  other  (Samuel  Adams)  were  the  only  persons  to  whom  this 
grace  was  denied.” 

Again:  On  the  3d  of  February,  1808,  the  Senate  of  that 
State  oflicially  declared  that  ‘‘  on  such  occasions  (the  embargo 
was  the  occasion)  passive  submission  would,  on  the  part  of  the 
people,  be  a  breach  of  their  allegiance,  and  on  our  part  treach¬ 
ery  and  perjury.  For  the  people  are  bound  by  their  allegiance, 
and  we  are  additionally  bound  by  our  oaths,  to  support  the 
Constitution  and  the  State,  and  we  are  responsible  to  the 
people  and  to  our  God  for  the  faithful  execution  of  the  trust.” 

But  this  is  not  all.  In  the  following  year  (1809)  the  Legis¬ 
lature  of  Massachusetts  ‘‘Besolved,  That  the  said  act  of  Con¬ 
gress  passed  on  the  9th  of  January,  in  the  present  year,  for 
enforcing  the  act  laying  an  embargo,  and  the  several  acts  sup¬ 
plementary  thereto,  are,  in  the  opinion  of  this  Legislature,  in 
many  respects  unjust^  oppressive^  and  unconstitutional^  and  not 
legally  binding  on  the  citizens  of  this  State.”  What ! !  Hot 
legally  binding  on  the  citizens  of  this  State!!  Would  this 
have  been  so  if  the  citizens  of  Massachusetts  had  in  the  sliMit- 
est  degree  owed  allegiance  to  the  General  Government  at 


15 


Washington?  We  have  high,  authority  for  saying  that  alle¬ 
giance  means  “the  tie  v^hich  binds  a  citizen  to  be  faithful  to 
the  sovereign  power,  wherever  that  power  may  reside”;  and 
that  sovereignty  means  “  that  ultimate  power  in  the  State 
which  no  other  power  can  rightfully  control  within  its  territo¬ 
rial  limits.” 

In  the  third  session  of  the  Eleventh  Congress  of  the  United 
States,  assembled  on  the  3d  of  December,  1810,  among  the 
political  and  constitutional  questions  of  interest  which  attracted 
the  attention  of  Congress  was  the  erection  of  Orleans  Ter¬ 
ritory  into  a  State.  Louisiana  was  applying  for  admission  into 
the  Union  as  a  State.  She  was  opposed  in  this  exclusively  by 
northern  members  on  constitutional  grounds.  The  great  con¬ 
stitutional  objection  urged  by  them  at  the  time  was  that  new 
States  could  not  be  formed  out  of  territory  not  originally  belong¬ 
ing  to  the  United  States — that  is,  out  of  territory  acquired  by 
the  Union  since  the  adoption  of  the  Constitution.  Then  it 
was  that  the  Jeffersonian  school  of  strict  construction  best 
*  suited  the  Uorth  and  her  representatives  in  Congress.  Mr. 
Quincy,  of  Massachusetts,  took  a  very  distinguished  part  in 
this  debate,  and  was  justly  regarded  as  the  great  embodi¬ 
ment  of  Northern  sentiments  and  feelings  when  he  hotly  con¬ 
tended  that  this  was  a  violation  of  the  Constitution,  which, 
in  its  grossness  and  violence,  wmuld  lead  to  a  dissolution  of  the 
Union,  “amicably  if  they  might,  forcibly  if  they  must.”  And 
an  accurate  historian  of  the  Constitution  of  the  United  States 
tells  us  that  “  this  was  the  earliest  indication  of  the  doctrine 
of  secession,  which,  upon  its  announcement,  fell  like  an  electric 
shock  upon  the  Congress  of  the  nation.”  And,  anomalous  as 
it  may  appear,  this  would-be  agitator  of  secession  and  dissolu¬ 
tion  from  Massachusetts  was  called  to  order  by  the  distinguished 
delegate,  Mr.  Poindexter,  from  the  Mississippi  Territory, 
stating  that  no  member  of  the  House  ought  to  be  permitted  to 
incite  any  portion  of  the  people  to  insurrection  and  a  dissolu¬ 
tion  of  the  Union.  Mississippi,  when  yet  a  territory,  lecturing 
Massachusetts  against  her  threatened  “  Rebellion'' !!  Mr.  Yar- 
num,  the  Speaker  of  the  House  at  that  time,  and  a  Massachu- 


16 


setts  representative,  decided  that  his  colleague,  Mr.  Quincy, 
was  in  order,  no  one  having  the  right  to  object  to  the  opinion 
that  the  admission  of  Louisiana  would  lead  to  a  dissolution  of 
the  Union.  Here,  then,  we  have  this  distinguished  represen¬ 
tative  of  Northern  sentiments  and  feelings,  Mr.  Quincy,  con¬ 
tending  for  the  very  strictest  construction  of  the  Constitution 
of  the  Union,  and  claiming  that  the  clause  in  the  Constitution 
authorizing  the  admission  of  new  States  must,  from  the  very 
context,  be  interpreted  to  relate  only  to  the  formation  of  new 
States  within  the  limits  of  the  Union  as  then  existing.  This 
was,  in  truth,  a  mere  abstraction,  as  Mr.  Clay  would  say  (not 
a  Virginia  abstraction,  however),  to  the  advocacy  of  which 
political  considerations,  blended  with  sectional  jealousy,  were 
the  chief  incentives. 

And  yet,  unless  this  narrow  and  mistaken  policy  to  restrict 
our  territorial  limits  should  be  adopted,  in  accordance  with  the 
sectional  views  and  interests  of  the  Northern  and  Eastern  States, 
a  dissolution  of  the  Union  was  threatened  “  amicably  if  they 
might,  forcibly  if  they  must.”  How  precisely  did  Mr.  Quincy, 
in  behalf  of  his  section,  employ  the  language  of  secession ! 

This  was  the  identical  Josiah  Quincy  who  afterwards  op¬ 
posed,  with  much  vehement  power,  the  embargo,  and  confessed 
that,  in  connection  with  some  of  his  colleagues,  he  had  sent 
expresses  to  the  Eastern  States  announcing  the  undoubted 
establishment  of  the  embargo,  and  said:  “  We  did  it  to  escape 
into  the  jaws  of  the  British  lion  and  of  the  French  tiger, 
which  are  places  of  repose,  of  joy,  and  delight,  when  com¬ 
pared  with  the  grasp  and  fang  of  this  hyena  embargo.” 

Do  these  official  acts  of  the  Senate  and  Legislature  of  Mas¬ 
sachusetts,  the  language  of  Chief-Justice  Parsons  and  Fisher 
Ames  in  1788  in  State  Convention,  General  Lincoln’s  offer  of 
mercy  to  her  rebellious  citizens  in  1787,  and  the  solemn  oaths 
prescribed  in  her  organic  law  from  March  2, 1780,  down  to  the 
year  1861  (we  are  not  aware  of  any  change  in  this  particular 
to  the  present  moment),  in  any  manner  conflict  with  the  defl- 
nitions  of  allegiance  and  sovereignty  given  in  a  prior  part  ot 


0 


I 


17 

•this  discussion?  Do  they  not,  on  the  contrary,  unqualifiedly 
adopt  and  sustain  them  ? 

These  evidences  are  by  no  means  all  from  that  distinguished 
State,  but  we  deem  them  sufficient  to  remind  her  officials, 
editors,  divines,  statesmen,  and  other  citizens,  that  in  throwing 
their  missiles  at  Southern  Heroes,  Patriots,  and  Martyrs,  they 
may  discover  a  glass  house’’  at  home  that  needs  to  be  guarded. 
We  might  easily  show  that  her  own  cherished  Webster — 
‘‘Defender  of  the  Constitution’’ — was  not  altogether  blameless 
upon  this  subject,  to  her  modern  vision.  We  might  exhibit  him 
as  abetting  proceedings  in  his  State  going  to  sustain  her 
ancient  view  of  State  allegiance  and  State  sovereignty,  and 
industriously  employing  his  talents  in  embarrassing  the  Fede¬ 
ral  councils  and  paralyzing  the  powers  of  the  Federal  Gov¬ 
ernment — in  holding  up  President  Madison  before  the  country 
and  the  world  as  an  “  imbecile  menial  of  France.” 

And  this  bitter,  unjust,  and  unfeeling  language  was  applied 
to  that  brave,  wise,  energetic,  and  patriotic  executive.  Presi¬ 
dent  Madison,  for  recommending  to  the  constituted  authorities 
of  the  United  States,  in  congress  assembled,  a  declaration  of 
hostilities  against  an  implacable  and  haughty  foe — England — 
for  her  cruel  and  despotic  policy  and  practice  of  “impress¬ 
ment”  and  her  “orders  in  council,”  by  which  our  citizen 
sailors  were  enslaved  and  scourged,  and  compelled  to  fight  the 
battles  of  their  oppressors  against  even  their  own  unofiending 
and  defenceless  countrymen,  and  our  harbors  insulted  and 
outraged,  and  our  commerce  with  fifty  millions  of  friendly 
people  most  wantonly  and  ruthlessly  plundered  and  spoliated 
in  every  sea.  Yes,  astounding  as  it  may  now,  in  this  day, 
appear,  simply  because  he  recommended  a  war  for  the  liberty 
of  our  own  citizens  on  the  high  seas,  for  our  national  honor 
and  interest,  for  our  free  and  rightful  commerce,  in  accordance 
with  the  law  of  nations,  with  our  foreign  friends,  and  for  the 
preservation  of  our  republican  form  of  government  against 
the  machinations  of  insolent  and  whimsical  tyranny,  Daniel 
AV'ebster  denounced  James  Madison,  “the  Father  of  the  Ameri¬ 
can  Constitution,”  and  the  then  President  of  the  United  States, 


18 


as  an  imbecile  menial  of  France.”  And  this,  too,  in  the  face  of 
the  fact,  well  known  to  him  at  the  time,  that  the  United  States, 
from  the  pure  and  simple  love  of  peace  alone,  had  actually 
drank  the  chalice  of  British  outrage,  insult,  injury,  insolence, 
and  depredation  to  the  very  last  dregs.  At  the  remembrance 
alone  of  such  scenes  enacted  by  Great  Britain  in  that  day, 
even  at  this  distance  of  time,  the  American  bosom  glows  fiercely 
with  indignation,  and  can  hardly  keep  down  the  horrid  feelings 
of  vengeance.  We  think  we  should  have  no  difficulty  in  tell¬ 
ing  where  this  distinguished  champion  of  the  ‘‘  Proclamation 
and  Force  Bill  ”  would  have  been  found  had  Massachusetts, 
instead  of  South  Carolina,  been  the  devoted  victim  of  Federal 
domination  in  1833,  and  Uew  England  instead  of  the  South  in 
’61.  The  countr}^  would  have  learned  from  him  something 
more  of  the  Eastern  doctrines  of  State  Sovereignty,  State  Al¬ 
legiance,  and  a  Northern  Confederacy. 

But,  peace  to  his  ashes !  For,  although  his  harsh  and  unjust 
criticism  upon  President  Madison,  when  remembered,  is  not 
to  be  patiently  endured,  yet  it  would  be  a  kind  of  sacrilege  as 
well  as  presumption  to  detract  from  the  deserved  glory  of  a 
man  who,  in  his  life,  speeches,  and  writings,  advanced  human 
nature  to  high  perfection  and  added  new  lustre  to  the  already 
splendid  fame  of  his  country.  We  shall  ever  warmly  cherish 
the  name  and  memory  of  Daniel  W ebster,  and  claim  an  interest 
in  him  as  well  as  in  James  Madison.  The  adopted  son  of  Mas¬ 
sachusetts  and  the  son  of  Virginia  were  alike  the  sons  of 
America,  and  their  splendid  fame  equally  belongs,  not  only  to 
their  own  country,  but  to  the  civilized  world.  This  is  some¬ 
what  a  digression.  We  did  not  intend  to  introduce  it.  But 
since  it  is  here,  and  faithfully  represents  the  truth  of  history, 
let  it  remain  for  its  truth. 

Neither  Massachusetts  then,  nor  her  sons,  surely,  should  have 
rebuked  that  noble  band  of  Southern  patriots  and  martyrs 
who,  in  rallying  to  the  defence  of  their  respective  States,  were 
but  following  out  her  own  teachings  in  pure  State  allegiance 
and  lofty  patriotism.  If  those  gallant  souls  are  to  be  forever 
infamously  decried  as  ‘Graitors  and  perjurers,”  Massachusetts 


19 


and  her  citizens  should,  at  least,  be  silent.  There  was  nothing 
in  their  conduct  that  should  have  horrified  her,  who  absolutely 
absolved  her  own  citizens  from  all  obedience  to  the  General 
Government,”  and  who  in  her  “Frame  of  Government” 
solemnly  declared  herself  to  be  a  “free,  sovereign,  and  inde¬ 
pendent  body  politic,  or  State,  by  the  name  of  The  Common¬ 
wealth  of  Massachusetts.”  With  her  this  great  doctrine  of 
allegiance  has  been  forever  decided ;  it  has  passed  into  the  gen¬ 
eral  frame  of  her  polity ;  it  is  by  her  laws  res  adjudicata — a 
settled  principle — conceived  and  established,  as  we  have  seen, 
by  her  public  record  in  her  ancient  days ;  those  days,  which 
may  have  passed  from  her  memory,  when  Virginia,  sacrificing 
the  favor  of  the  British  Crown,  endured  side  by  side  with  her 
a  common  suftering,  battled  for  a  common  cause,  and  rejoiced 
in  a  common  and  glorious  triumph — a  victory  which  thrilled 
the  world;  for  the  proud  British  Lion  lay  prostrate  under  the 
talons  of  the  young  American  Eagle  at  Old  Yorktown.  Oh  t 
that  Massachusetts  had  enabled  us  to  say  of  her  in  1861 :: 
^‘Moribus  antiquis  Stat  Roma!  ” — “Rome  stands  by  her  ancient 
morals !  ” 

Maine. 

Maine,  we  know,  was  originally  a  part  of  Massachusetts  and 
formed  out  of  her  territory,  and  her  admission  into  the  Union 
as  a  separate  sovereign  State  was  completed  on  the  15th  of 
March,  1820;  so  that,  of  course,  she  w^as  a  part  of  Massachusetts 
during  that  portion  of  her  history  which  we  have  just  recited. 
What  said  the  State  of  Maine  on  this  great  question  in  the  year 
1831,  when  “resolving^^  on  the  subject  of  the  treaty  or  conven¬ 
tion  between  the  United  States  and  Great  Britain  had  in  the 
year  1827,  for  establishing  the  northeastern  boundary  of  the 
States  by  the  decision  of  a  common  umpire?  Uowq  a  treaty 
with  a  foreign  nation,  we  all  know,  is  termed  by  the  Constitu¬ 
tion  of  the  United  States  “the  supreme  law  of  the  land,”  and 
agreed  to  be  such  by  the  States— the  States  themselves  made 
it  so.  Yet,  nevertheless,  let  us  notice  some  of  the  language 
of  that  State  through  her  legislative  body  on  the  memorable 
occasion  of  her  condemnation  of  the  said  treaty.  “The  State 


20 


of  Maine,  by  the  force  and  effect  of  the  Act  of  Separation  from 
Massachusetts,  became  vested  with  the  Eights  of  Sovereignty 
of  Massachusetts.”  Again :  Among  the  rights  and  powers 
not  delegated  (to  the  United  States)  are  the  rights  and  powers 
in  tbe  States  respectively  to  retain  their  entire  territories^  and 
of  exercising  Sovereign  Power  over  them.”  In  denying  any 
power  to  Congress  under  the  Constitution  of  the  United  States 
to  dismember  a  State,  she  said  with  great  emphasis  that  ‘‘  The 
exercise  of  such  a  power  ought  to  he^  and  always  will  be,  resisted 
by  a  free  people.” 

Ah!  dear  old  Yirginia  thought  so,  too!  She,  also,  had  seen 
that  provision  in  the  Constitution  of  the  Union  which  declares 
that  ‘‘Uo  new  State  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  State  without  the  consent  of  the  legis¬ 
latures  of  the  States  concerned,  as  well  as  of  Congress.”  ^  But 
what  did  all  this  avail  her  in  the  presence  of  an  armed  usurpa- 
■tion,  in  which  this  very  State  of  Maine  bore  a  conspicuous 
part  ? 

These  things,  and  more  like  them,  were  said  by  Maine  on  the 
28th  of  February,  1831.  But,  again,  on  the  30th  March,  1831,  in 
another  report  on  the  same  subject  drawn  up  by  her,  pursuant 
to  a  special  message  of  her  Governor,  she  made  the*  following 
solemn  declaration:  “And,  further,  should  the  United  States 
adopt  the  document  as  a  decision,  it  will  be  in  violation  of  the 
constitutional  rights  of  the  State  of  Maine,  which  she  cannot 
yield.”  Uow,  what  did  this  language  mean?  If  it  meant  any¬ 
thing,  it  meant  fight.  But  fight  whom?  The  United  States 
Government,  of  course.  With  what  force?  The  citizens  of 
Maine,  over  whom  she  claimed  to  be  sovereign,  and  from  whom 
she  demanded  undivided  allegiance  and  obedience  in  peace  and 
in  war. 

And  to  carry  out  this  intention  more  successfully  she  deemed 
it  necessary  to  advise  with  and,  if  possible,  procure  the  co¬ 
operation  of  her  sovereign  co-State,  Massachusetts — ^her  old 
mother.  For  this  purpose  she  despatched  a  minister  plenipo¬ 
tentiary — in  the  person  of  her  citizen  Mr.  Parks — who  was 
regularly  accredited  by  the  Government  of  Massachusetts, 


21 


and  negotiations  actually  opened,  and  successfully  concluded, 
so  far,  at  least,  as  relates  to  the  adoption  of  the  resolutions 
asserting  the  principles  on  which  the  State  [of  Maine  relied. 
Massachusetts  was  solicited  not  to  speak  out^'  merely,  but  to 
stand  side  by  ^de,  shoulder  to  shoulder,  wutfi  Maine  in  some¬ 
what  vigorous  measures,  if  there  should  need  he  in  the  matter. 

As  this  question  of  dividing  the  territory  of  a  State  without 
her  consent  has  been,  and  will  ever  be  with  the  States  of  the 
Union,  a  great  and  solemn  question,  and  having  alluded  in  this 
connection  to  the  case  of  Virginia,  pardon  the  digression  if 
•we  state  in  this  her  ancient  doctrine  touching  it.  There  was  a 
time  in  her  history  [when  she  had  a  question  of  disputed 
boundary  with  her  sister  State  of  Maryland.  That  State 
threatened  to  bring  suit  against  her  in  the  Supreme  Court  of 
the  United  States  for  a  decision  of  the  case,  and  to  obtain  by 
the  compulsory  process  of  that  tribunal  a  partition  of  the 
sovereignty,  jurisdiction,  and  territory  of  the  Commonwealth. 
Virginia,  under  the  gallant  lead  of  that  great  statesman  and 
jurist,  Littleton  Waller  Tazewell,  then  her  Governor,  declared 
her  unalterable  purpose  not  to  submit  a  question  involving  the 
extent  of  her  sovereign  limits  to  any  tribunal  not  of  her  own 
selection.  Speaking  for  Virginia,  he  said,  after  disclaiming 
any  distrust  of  the  jDerfect  rights  of  Virginia,  or  of  the  integrity 
or  intelligence  of  the'forum  selected  to  pass  upon  them  :  “  If 
we  could  submit  questions  involving  matters  of  such  high  con¬ 
cern  to  any  judicial  tribunal,  perhaps  none  better  could  be 
selected  than  that  before  which  the  General  Assembly  of  the 
State  of  Maryland  desires  to  force  us  to  appear.  But  it  befits 
not  sovereignty  to  submit  the  question  of  its  own  existence  to 
any  judiciary  whatever.  The  same  authority  which  is  equal  to 
despoil  a  State  of  any  portion  of  its  territory,  contrary  to  its 
own  consent,  is  also  equal  to  annihilate  the  very  being  of  the 
State  itself.  In  consenting  to  appear  and  defend  our  rights 
before  any  tribunal  not  chosen  by  ourselves  we  virtually  admit 
its  authority  to  determine  the  matter  in  controversy,  and  as 
Virsiinia  can  never  consent  to  hold  her  territory  at  the  will  of 


any  other,  she  never  ought  to  give  countenance  to  the  idea  that 
she  will  abide  by  the  expression  of  any  such  will.’’ 

Mr.  Jefierson,  John  Taylor,  of  Caroline,  Judge  Roane,  and 
their  compeers,  in  a  more  questionable  case,  utterly  denied  the 
jurisdiction  of  the  Supreme  Court,  and  denounced  and  repu¬ 
diated  its  decision.  We  allude  to  the  case  of  ‘‘Cohen  vs.  The 
State  of  Virginia,”  in  the  Supreme  Court  in  1821  (6  Wheat. 
R.  264). 

It  is  very  true  that  the  Federal  G-overnment,  through  its 
Supreme  Court,  has  taken  jurisdiction  of  questions  of  boun¬ 
dary  between  States ;  but  in  those  cases  the  parties  voluntarily, 
appeared,  and  the  court  acted  very  much  in  the  character  of 
arbitrators  selected  by  the  parties,  to  whose  judgment  they 
would,  in  good  faith,  be  bound  to  submit.  But  the  question  is 
a  vastly  difierent  one  altogether  whenever  the  Federal  Govern¬ 
ment,  through  any  of  its  departments,  assumes  such  authority 
in  violation  of  the  dignity  and  the  sovereignty  of  any  one  of 
the  several  States.  How  can  any  one  at  all  familiar  with  the 
history  of  our  Constitution  believe  that  the  States,  in  ratifying 
it,  ever  contemplated  the  submission  to  the  Supreme  Court 
or  any  other  power  of  questions  involving  the  corpus  of  their 
sovereignty  ?  If  the  Supreme  Court,  as  Governor  Tazewell 
well  says,  can  deprive  a  State  of  a  part  of  her  territory,  it  maj^, 
as  far  as  the  question  of  power  is  concerned,  deprive  her  of  all 
that  she  claims,  and  thus  annihilate  her  very  existence  itself. 
Can  any  rational  being  suppose  for  one  moment  that  any 
such  thing  could  ever  have  been  contemplated,  either  by  tlie 
Convention  that  framed  the  Constitution  or  the  •  States  that 
adopted  it  ? 

But,  it  may  be  asked,  if  the  Supreme  Court  has  not  jurisdic- 
diction  in  such  a  case,  where  is  a  final  arbiter  to  be  found  ? 
We  answer,  emphatically.  Nowhere.  The  Constitution  of  the 
United  States  provides  none,  nor  did  it  design  to  provide  any. 
Our  Federal  Constitution  is  a  compact  between  sovereign 
States,  who  reserved  to  themselves  respectively  all  such  ques¬ 
tions.  They  are  to  be  adjusted  by  negotiation,  mediation,  arbi¬ 
tration,  and  the  other  resources,  which  are  almost  infinite,  of 


23 


amicable  adjustment;  and  beyond  this  no  remedy  is  provided, 
and  it  is  scarcely  possible  any  can  be  necessary.  They  are  to 
be  settled  as  they  were  in  the  case  between  Virginia  and  her 
good  sister  Maryland,  not  to  mention  any  others. 

In  the  case  of  Jonathan  Robbins,  John  Marshall,  afterwards 
Chief  Justice,  of  the  Supreme  Court,  expressly  said  that  the 
jurisdiction  of  the  Supreme  Court  “  cannot  be  extended  to 
political  compacts,  as  the  establishment  of  the  boundary  line 
between  the  American  and  British  dominions.” 

Did  not  the  Constitutional  Convention  of  May,  1^87,  express 
the  same  opinion  when  it  twice  rejected  propositions  giviug 
the  power  to  settle  disputes  between  the  IJnited  States  and  a 
State  respecting  territory  ?  Also  rejected  the  proposition  to 
decide  generally  controversies  between  a  State  and  the  Ilnited 
States  ? 

Connecticut. 

Let  us  hear  from  the  State  of  Connecticut.  We  find  Roger 
Sherman  writing  to  John  Adams,  July  20,  1789:  “I  fully 
agree  with  you,  sir,  that  it  is  optional  with  the  people  of  a  State 
to  establish  any  form  of  government  they  please ;  and  I  am 
also  of  opinion  that  they  may  alter  their  form  of  government 
when  they  please,  any  former  act  of  theirs,  however  explicit,  to 
the  contrary  notwithstanding.” 

Judge  Ellsworth,  of  Connecticut,  afterwards  Chief- Justice 
of  the  United  States  Supreme  Court,  speaking  of  the  Federal 
Government,  said:  “It  can  only  embrace  objects  of  a  general 
nature.  I  turn  my  eyes,  therefore,  for  the  preservation  of  my 
rights  to  the  State  governments.  From  these  alone  I  can 
derive  the  greatest  happiness  I, expect  in  life.  This  happiness 
depends  on  their  existence  as  much  as  a  new-born  infant  on  its 
mother  for  nourishment.”  • 

In  a  speech  of  Mr.  Hillhouse,  a  senator  in  Congress  from 
Connecticut,  in  1809,  he  thus  expresses  himself  upon  the  nul¬ 
lity  of  the  embargo :  “  However  painful  the  task,  a  sense  of 
duty  calls  upon  me  to  raise  my  voice  and  use  my  utmost  exer¬ 
tions  to  prevent  the  passing  of  this  bill.  I  feel  myself  bound  in 
conscience  to  declare,  lest  the  blood  of  those  who  should  fall  in 


24 


the  execution  of  this  measure  may  lie  on  my  head,  that  I  con¬ 
sider  this  to  be  an  act  which  directs  a  mortal  blow  at  the  liber¬ 
ties  of  my  country;  an  act  containing  provisions 

to  which  the  people  are  not  hound  to  submit,  and  to  which,  in  my 
opinion,  they  will  not  submits  What ! !  The  people  of  Con¬ 
necticut  not  bound  to  submit  to  the  laws  of  their  own  Congress, 
if  in  their  opinion  they  be  not  constitutional ! ! 

We  find  Connecticut  on  the  1st  of  March,  1809,  at  an  extra 
session  of  h(^'  Legislature,  indulging,  among  others,  the  follow¬ 
ing  resolutions:  “That  this  assembly  highly  approve  of' the 
conduct  of  his  Excellency  the  Grovernor  in  declining  to  desig¬ 
nate  persons  to  carry  into  effect,  by  the  aid  of  military  power, 
the  act  of  the  United  States  enforcing  the  embargo,  and  that 
his  letter,  addressed  to  the  Secretary  for  the  Department  of 
War,  containing  his  refusal  to  make  such  designation,  be  re¬ 
corded  in  the  public  records  of  the  State  as  an  example  to 
persons  who  may  hold  places  of  distinguished  trust  in  this  free 
and  independent  republic.” 

“  That  the  persons  holding  executive  offices  under  this  State 
are  restrained  by  the  duties  which  they  owe  this  State  from 
affording  any  official  aid  or  co-operation  in  the  execution  of 
the  acts  aforesaid ;  and  that  his  Excellency  the  Governor  be 
requested,  as  commander-in-chief  of  the  military  force  of  this 
State,  to  cause  these  resolutions  to-  be  published  in  general 
orders ;  and  that  the  Secretary  of  State  be  and  he  is  hereby 
directed  to  transmit  copies  of  the  same  to  the  several  sheriffs 
and  town  clerks.” 

Uow,  we  find  in  these  proceedings  the  doctrine  of  State 
♦  allegiance  in  perfection.  It  was  ordered  to  be  proclaimed  bw 
the  Governor,  in  his  military  capacity  as  commander-in-chief 
of  the'  forces  of  the  State,  and  also  to  be  transmitted  by  her 
State  secretary  to  her  several  executive  officers  everywhere, 
that  their  duties  to  their  State  “  restrained  ”  them  from  yield¬ 
ing  either  “  official  aid  or  co-operation,”  either  allegiance  or 
obedience,  to  the  laws  of  the  General  Government  at  Wash¬ 
ington,  and,  if  need  be,  they  must  prepare  to  resist  the  acts  of 
that  government — her  own  Federal  power.  Is  not  this  a  fair 


and  impartial  interpretation  of  the  resolutions  quoted  ?  Again , 
the  Constitution  of  the  United  States  provides  that  “  no  State^ 
except  in  time  of  war,  shall  keep  on  foot  troops,  &c., 

Connecticut  availed  herself  of  this  negative  clause  of  the 
Constitution,  construed  it  into  an  express  admission  that  any 
State  in  time  of  war  may  keep  on  foot  troops,  and  actually 
organized  a  corps  elite  for  her  defence  against  foreign  or  domes¬ 
tic  foes.  Uow,  by  this  latter  expression — ‘‘domestic  foes^’ — it 
was  well  understood  at  the  time  that  she  meant  t^  include  the 
Federal  Government  and  its  officers.  We  might  mention  upon 
the  authority  of  a  distinguished  Uew  England  statesman  of 
that  day — John  Quincy  Adams — some  other  things  which  our 
sister  Connecticut  said  and  di^,  in  conjunction  with  her  other 
^N’ew  England  sisters,  in  a  memorable  convention  called  ‘‘  the 
Hartford  Convention,”  about  these  embargo  and  war  times,  in 
support  of  the  great  theory  and  practice  of  State  sovereignty 
and  State  allegiance.  But  as  these  sayings  and  doings  consti¬ 
tute  a  part  of  her  arcana,  and  as  it  would  no  doubt  he  dis¬ 
agreeable  to  the  sister  to  have  such  reviewed  and  laid  bare  in 
these  times  of  her  consolidation  triumph  and  glory,  and  as 
the  politeness  of  such  a  disclosure  of  her  private  aflairs  might 
be  questioned,  we  respectfully  forbear  to  pry  into  her  State 
secrets  further  than  to  give  a  few  extracts  from  the  journal 
of  the  Hartford  Convention. 

Rules  of  proceeding  adopted  15th  December,  18H,  the  first  day  of 

the  meeting, 

1.  The  most  inviolable  secrecy  shall  be  observed  by  each 
member  of  this  Convention,  including  the  secretary,  as  to  all 
propositions,  debates,  and  proceedings  thereof  until  this  injunc¬ 
tion  shall  be  suspended  or  altered. 

2.  The  secretary  of  this  Convention  is  authorized  to  employ 
some  suitable  person  to  serve  as  a  door-keeper  and  messenger,, 
together  with. a  suitable  assistant,  if  necessary,  neither  of  whom  is- 
at  any  time  to  he  made  acquainted  loith  any  of  the  debates  or  proceed¬ 
ings  of  the  Board. 


26 


January  S,  1815. 

After  the  acceptance  of  the  final  report,  on  motion, 

Resolved,  That  the  injunction  of  secrecy  in  regard  to  the 
debates  and  proceedings  of  this  Convention,  except  in  so  far  as 
relate  to  the  report  finally  adopted,  be  and  hereby  is  continued. 

B. — This  injunction  of  secrecy  was  never  removed.  The 
Convention  adjourned  the  5th  of  January,  1815. 

JJxfhacts  from  the  final  report  of  the  Convention. 

Finally,  if  the  Union  be  destined  to  dissolution,  by  reason  of 
the  multiplied  ^uses  of  bad  administrations,  it  should,  if  pos¬ 
sible,  be  the  work  of  peaceable  times  and  deliberate  consent. 
Some  new  form  of  confederacy  should  be  substituted  among  those 
States  which  shall  intend  to  maintain  a  federal  relation  to  each  other  ; 
therefore 

Resolved^  ‘‘  That  it  be  and  hereby  is  recommended  to  the 
legislatures  of  the  several  States  represented  in  this  Conven¬ 
tion  to  adopt  all  such  measures  as  may  be  necessary  eflectually 
to  protect  the  citizens  of  said  States  from  the  operation  and  efiects 
of  all  acts  which  have  been  or  may  be  passed  by  the  Congress 
of  the  United  States  w'hich  shall  contain  provisions  subjecting 
the  militia  or  other  citizens  to  forcible  drafts,  conscriptions,  or 
impressments  not  authorized  by  the  Constitution  of  the  United 
States.”  Such  were  the  proceedings  of  the  Uew  England 
States  in  unjustifiable  opposition  to  the  regular  and  necessary 
war  measures  of  the  Gieneral  Government  at  a  time  when  that 
Government  was  in  the  extremest  peril  and  embarrassment  in 
defending  our  country  from  the  assaults  of  a  gigantic  foreign 
adversary.  And  the  proceedings  of  the  War  Congress  of 
June  4,  1812,  show  that  it  was  a  measure  of  the  South  and 
West  to  protect  the  interest  of  the  North. 

But  what  was  the  conduct  of  the  much-abused  and  down¬ 
trodden  State  of  South  Carolina  at  this  critical  conjuncture  ? 
Governor  D.  B.  Williams,  of  that  gallant  State,  on  the  22d  of 
December,  1814,  addressed  a  letter  to  the  Secretary  of  the 
United  States  Treasury,  in  answer  to  a  letter  received  by  him 


from  Major-General  Pinckney,  informing  him  that  the  funds 
of  the  General  Government  at  his  disposal  loere  exhausted,  and 
said:  ‘‘ I  have  the  pleasure  to  inform  you  that  two  hundred 
and  sixty  thousand  dollars  have  been  put  at  the  disposition  of 
the  General  Government  by  the  Legislature  last  evening.  I 
hope  it  is  unnecessary  to  add  that  my  individual  and  official 
efforts  will  not  be  w^anting  in  aiding  the  Government  when¬ 
ever  in  my  power.”  Thus  it  is  a  historical  fact  that  at  the 
very  time  of  the  Hartford  Convention,  and  in  one  of  the  dark¬ 
est  periods  of  our  country’s  existence,  the  embarrassment  of 
the  Union  was  communicated  to  the  Legislature  of  South  Car¬ 
olina  in  the  morning,  and  before  their  adjournment  in  the  even¬ 
ing  the  representatives  of  the  people  of  South  Carolina  freely 
and  at  great  sacrifice  opened  their  treasury  to  relieve  and  sus¬ 
tain  the  Union. 

The  embargo  and  non-intercourse  laws  grew  out  of  the  war 
power  of  the  United  States  Government,  and  was,  outside  of 
the  Hartford  Convention  movement,  universally  regarded  at 
that  time  as  a  necessary  war  measure — of  defensive  as  well  as 
of  offensive  hostility — and,  therefore,  as  most  undoubtedly 
within  the  powers  of  Congress. 

We  stood  in  a  relation  to  the  world  which  no  other  nation 
occupied,  as  a  great  granary,  from  which  many  other  countries 
were  supplied,  and  some  had  been  occasionally  fed.  To  with¬ 
hold  for  a  time,  by  means  of  the  embargo  and  non-intercourse 
acts,  those  necessary  supplies  from  a  national  foe  committing 
aggressions  against  us,  was  a  measure  of  fair,  obvious,  and 
•  eflectual  hostility  on  the  part  of  our  General  Government,  by 
which  the  offending  nation  might  be  reclaimed  to  a  just  course 
of  conduct  toward  us.  And  yet  these  very  States  that  were 
then  engaged  in  the  Hartford  Convention  in  adopting  measures 
to  withdraw  their  resources  from  the  aid  of  the  Federal  Gov¬ 
ernment,  and  to  embarrass  and  resist  it  in  all  possible  w^ays 
and  means,  are  now  vituperating  and  vilifying  that  grand  hero 
and  patriot,  Pobert  E.  Lee,  and  his  splendid  and  noble  com¬ 
peers  in  arms,  as  traitors  and  perjurers,  simply  because  they 
bid  a  honorable,  though  sad,  farewell  to  the  old  regulars  of  the 


28 

United  States  army  and  navy  and  joined  their  respective  States 
in  a  just,  legitimate,  and  boldly-avowed  opposition  and  open- 
field  resistance  to  an  unconstitutional  and  unnecessary  war 
against  those  States — not  a  foreign  foe,  but  their  own  sisters — 
in  the  midst  of  the  peace,  prosperity,  and  highest  power  of  the 
Federal  Government. 

It  is  worthy  of  especial  notice  that  these  Hartford  Conven¬ 
tion  States,  so  to  call  them,  were  in  1814  anxious  and  urgent 
for  an  amendment  of  the  Constitution  of  the  United  States 
‘‘  requiring  the  concurrence  of  two-thirds  of  Congress  to  declare 
war  or  authorize  acts  of  hostility  against  any  foreign  nation, 
except  in  defence  and  in  cases  of  actual  invasion,”  and  yet,  in 
1861,  eagerly  rushed  forward  to  invade  the  rights  and  peace 
of  their  own  sister  Southern  States  at  the  instance  of  a  mere 
executive  proclamation,  issued  in  the  absence  of  Congress  and 
in  open  violation  of  the  Federal  Constitution.  General  Lee 
and  his  old  army  and  navy  comrades  from  the  South  in  1861, 
had  but  to  take  a  casual  review  of  the  political  history  of  Mas¬ 
sachusetts  and  the  rest  of  her  sister  Eastern  States  from  the 
adoption  of  the  Constitution  of  the  United  States  to  the  war 
of  1812-’14,  and  on  through  the  period  of  the  annexation  of 
Texas,  and  that  of  the  passage  of  the  fugitive-slave  law  of  1850, 
to  find  abundant  teachings  in  favor  of  State  allegiance.  State 
sovereignty,  the  separation  of  the  States,  and  the  formation  of 
a  i^orthern  confederacy.  Whether  this  latter  project  was 
ventured  by  its  promoters  and  advocates  before  the  public 
earlier  than  1796,  we  are  not  aware.  But  of  its  promulgation 
in  that  year  in  the  elaborate  essays  of  Pelham — the  joint  pro¬ 
duction  of  an  association  of  men  of  inordinate  wealth,  great 
energy,  and  of  the  first  talents  and  influence  in  the  State  of 
Connecticut,  and  well  approved  and  sustained  in  the  Eastern 
States  generally — ^^is  indubitable  and  well  known.  And  from 
that  time  for  eighteen  years  onward  the  most  unceasing,  unpa¬ 
triotic,  and  virulent  endeavors  were  used  by  leading  and  dis¬ 
tinguished  editors,  preachers,  and  politicians,  in  and  out  of 
office,  to  poison  the  minds  of  the  people  of  the  Eastern  States 
towards  and  to  alienate  them  from  the  people  of  the  Southern 


29 


States.  And  it  is  important  to  know  that  when  these  efforts 
to  sow  discord,  jealousy,  and  hostility  between  the  different 
sections  of  the  Union,  in  order  to  accomplish  their  favorite 
and  darling  object  of  a  dissolution  of  the  Union,  first  began 
in  the  Uew  England  States,  every  feature  in  the  afiairs  of  the 
country  was  exactly  according  to  their  fondest  wishes.  The 
immortal  and  good  Washington  was  President;  John  Adams, 
an  Eastern  man,  was  Vice-President.  There  was  then  no 
Virginia  dynasty,”  no ‘^French  infiuence,”  no  “embargo,” 
no  “ non-intercourse,”  no  “terrapin  policy,”  no  “Democratic 
madness,”  and  no  “war.”  The  noble,  the  august,  the  splen¬ 
did  fabric  of  our  Union,  and  the  unparalleled  form  of  our 
government,  were  in  the  hands  and  in  the  keeping  of  rulers  of 
their  own  choice. 

Before  proceeding  further  we  deem  it  proper  to  say,  by  way 
of  parenthesis,  that  in  the  foregoing  allusions  to  England  a 
vnde  distinction  is  always  to  be  made  between  the  English 
Grovernment  and  the  English  people.  For  while  England  is 
most  rapacious  and  unjust  as  a  nation,  she  stands  proudly  pre¬ 
eminent  in  the  sterling  moral  worth  and  the  elevated,  practical 
character  of  her  people.  The  general  character  of  England, 
then,  should  not  be  contaminated  with  the  avarice,  injustice, 
and  ambition  of  her  statesmen  and  warriors.  While  Finland 
and  our  own  Union  endure,  they  have,  in  spite  of  manifold 
differences,  political  and  social,  an  unity  in  the  solemn  guardian¬ 
ship  of  religious  and  constitutional  freedom — the  only  freedom 
which  has  been  other  than  a  curse  to  mankind.  They  are  enno¬ 
bled  by  many  of  the  same  ancestral  memories,  associated  by 
the  same  language  and  literature,  and  encouraged  by  the  same 
hopes  of  civilization. 

Uew  York  State. 

The  Convention  of  the  State  of  Yew  York  ratified  the  Con¬ 
stitution  of  the  United  States  only  on  the  condition  “that  the 
power  of  the  Government  may  be  reassumed  by  the  people  (of 
^  Yew  York,  of  course,  for  she  was  speaking  for  herself  only) 
whenever  it  shall  become  necessary  to  their  happiness.”  Her 


great  statesman,  Alexander  Hamilton,  declared  in  the  Assem¬ 
bly  of  i^ew  York  State  :  “  Each  State  possesses  in  itself  full 
power  of  government,  and  can  at  once,  in  a  regular  and  consti¬ 
tutional  way,  take  measures  for  the  preservation  of  its  rights.’^ 
Again,  he  said  in  his  letter  to  the  people  of  Yew  York,  written 
for  the  purpose  of  persuading  them  that  the  sovereignty  of  the 
States  was  not  touched  by  the  new  Constitution :  “  But  it  is 
said  that  the  laws  of  the  Union  are  to  be  the  supreme  laws  of 
the  land.  But  it  will  not  follow  from  this  doctrine'that  the 
acts  of  the  larger  society  (the  Federal  Union)  which  are  not 
pursuant  to  its  constitutional  powers,  but  which  are  invasions  of 
the  residuary  rights  of  the  smaller  authorities  (the  States),  will 
become  the  supreme  law  of  the  land.  These  will  be  merely 
acts  of  usurpation  and  will  deserve  to  be  treated  as  such.’^ 
Again,  he  said  in  the  twenty-eighth  number  of  the  Federalist: 
‘‘It  may  safely  be  received  as  an  axiom  in  our  political  system 
that  the  State  Governments  will  in  all  possible  contingencies 
afford  complete  security  against  invasions  of  the  public  liberty 
by  the  national  authority.  Projects  of  usurpation  cannot  be 
masked  under  pretences  so  likely  to  escape  the  penetration  of 
select  bodies  of  men  as  of  the  people  at  large.  The  Legisla¬ 
tures  will  have  better  means  of  information.  They  can  dis¬ 
co  vet^  the  danger  at  a  distance ;  and,  possessing  all  the  organs 
of  civil  powder  and  the  confidence  of  the  people,  they  can  at 
once  adopt  a  regular  plan  of  opposition  in  which  they  can  com¬ 
bine  all  the  resources  of  the  community.” 

Chief-Justice  Jay  said  that  “thirteen  sovereigns  were  con¬ 
sidered  as  emerging  from  the  principles  of  the  Bevolution, 
combined  by  local  convenience  and  considerations.” 

In  the  Legislature  of  Yew  York,  on  the  8th  of  Yovember, 
1824,  Mr.  Tallmadge,  in  the  House  of  Assembly,  offered  a  reso¬ 
lution  against  the  -  right  of  Congress ‘to  license  and  to  demand 
tonnage  duties  from  canal-boats  in  that  State,  which  was 
adopted  almost  unanimously,  declaring  that,  “  Whereas  it 
appeal's  to  this  Legislature,  after  due  consideration,  that  the 
claim  on  the  part  of  the  United  States  to  require  boats  which 
navigate  our  canals  to  be  enrolled  or  licensed  to  pay  tonnage 


31 


duties  is  a  claim  not  founded  on  any  legal  right,  and  in  regard 
to  the  circumstances  to  which  it  is  made  such  claim  is  so 
evidently  unjust  and  oppressive  that  the  interference  of  this  State 
is  called  for  in  defence  of  its  citizens;  therefore 

Resolved  (if  the  Senate  concur),  That  the  senators  of  this 
State  in  the  Senate  of  the  United  States  be  directed,  and  the 
representatives  of  this  State  in  the  House  of  Kepresentatives 
of  the  United  States  be  requested,  to  use  their  utmost  endeavors 
to  prevent  any  such  unjust  and  oppressive  exaction  for  tonnage 
duties  on  boats  navigating  the  canals  from  being  carried  into 
effect.’’ 

This  was  the  beginning  of  Hew  York’s  resistance.  A  year 
and  a  half  after  this  resolution  her  senator  (Mr.  Yan  Buren) 
in  the  United  States  Senate  gave  notice  that  his  State  “  would 
resist  to  the  last  extremity.”  We  here  give  his  language  in 
that  body  May  19,  1826 :  “  From  that  time  (1824)  to  the 
present,  or  until  very  recently,  no  steps  have  been  taken  by 
the  Government  to  enforce  its  claim,  nor  in  behalf  of  the  State 
to  shield  herself  against  injustice.^^  And  further  on  in  the  course 
of  the  same  remarks  he  said :  The  act  itself  was  unauthorized 
by  the  Constitution  of  the  United  States — an  encroachment  on 
the  rights  of  the  State,  which  she  ought  and  would  resist  to  the 
last  extremity.”  How,  we  ask.  What  more  did  Mr.  Calhoun 
ever  declare  in  behalf  of  his  State?  What  more  could  any 
State  do  than  ‘Ho  resist  to  the  last  extremity”  ? 

The  Rochester  Telegraph  of  that  period  has  this  to  say  of  the 
demand  of  licenses  at  the  time  of  its  occurrence :  “  We  regret 
to  learn  that  the  collector  of  the  United  States  revenue  at  Buf¬ 
falo  requires  a  coasting  license  from  all  the  canal  boats  that 
clear  from  that  place.  It  was  hoped  that  after  the  eloquent 
and  conclusive  arguments  of  General  Tallmadge  on  State 
rights,  the  strong  expression  of  the  Legislature  in  1824,  and  the 
resolution  of  Mr.  Martindale  in  Congress,  there  would  be  no 
more  encroachments  of  the  General  Government  upon  the 
artificial  waters  of  this  State.’’ 

Congress  did  not  despise  her  application  ibr  redress,  or  Hew 


32 


York  would jjdoubtless  have  confirmed  the  threat  of  her  senator 
(Yan  Buren),  who  was  speaking  under  her  instructions, 

Ohio. 

In  our  examination  of  the  proceedings  of  the  Ohio  Legisla¬ 
ture  of  1820  against  the  United  States  Bank  we  find  the  views 
of  the  Yew  England  States  referred  to  by  us  in  the  preceding 
pages  of  this  discussion  most  ably  and  boldly  sustained.  In 
those  proceedings  she  approved  and  adopted  as  her  own  the  Vir¬ 
ginia  and  Kentucky  resolutions  of  ’98  and  ’99,  and  declared 
that  their  principles  had  been  “  recognized  and  adopted  by  a 
majority  of  the  American  people.”  She  protested  “.against 
the  doctrine  that  the  political  rights  of  the  separate  States  that 
compose  the  American  Union  and  their  powers  as  sovereign 
States  may  be  settled  and  determined  in  the  Supreme  Court 
of  the  United  States,  so  as  to  conclude  and  bind  them  in  cases 
contrived  between  individuals,  and  where  they  are — no  one  of 
them — parties  direct.”  And  she  passed  an  act  denying  to  the 
bank  all  protection  from  the  State  laws  and  depriving  it  of 
almost  all  civil  rights.  It  was  recommended  to  her  by  a  com¬ 
mittee  of  her  Legislature  to  forbid  by  law  “  the  keepers  of  our  • 
jails  from  receiving  persons  committed  at  the  suit  of  the  Bank 
of  the  United  States  or  for  any  injury  done  them,  prohibiting 
any  judicial  officers  from  taking  acknowledgment  of  convey¬ 
ances  where  the  bank  is  a  party  or  when  made  for  their  own 
use,  and  our  recorders  from  receiving  or  recording  such  con¬ 
veyances  ;  forbidding  our  courts,  justices  of  the  peace,  judges, 
and  grand  juries  from  taking  cognizance  of  any  Wrong 
alleged  to  have  been  committed  upon  any  species  of  property 
owned  by  the  bank,  or  upon  any  of  its  corporate  rights  or 
privileges,  and  prohibiting  our  notaries  public  from  protest¬ 
ing  any  notes  or  bills  held  by  the  bank  or  their  agents,  or 
made  payable  to  them.”  And  following  up  this  recommenda¬ 
tion,  she  did  pass  just  such  a  law  through  her  Legislature. 
Could  anything  have  been  more  thoroughly  searching  than 
these  proceedings  It  will  be  seen  that  in  them  no  such  com¬ 
mon  arbiter  as  the  Supreme  Court  of  the  United  States  is 


allowed  for  a  moment,  but  that  the  great  State  of  Ohio  pro¬ 
claimed  to  all  concerned  that,  in  a  question  between  herself 
and  the  General  Government,  she  was  judge  in  her  own  politi¬ 
cal  character,  and  instructed  her  officers,  bj  a  solemn  act  of  her 
Legislature,  that  in  such  a  contest  her  orders  alone  were  to  be 
acknowledged — that  their  allegiance  and’ their  consequent  obe¬ 
dience  were  due  to  her  and  to  her  alone.  Her  distinguished 
son,  the  Hon.  Judge  John  McLean,  wrote  to  a  gentleman  in 
the  State  of  Horth  Carolina  on  the  23d  of  October,  1834,  from 
Knoxville,  as  follows : 

“In  my  view  no  powers  can  be  exercised  by  the  Federal  Gov¬ 
ernment  except  those  which  are  expressly  delegated  to  it;  and 
I  should  think  that  the  ex]3erience  we  have  had  ought  to  con¬ 
vince  every  one  that  any  extension  of  the  Federal  powers  must 
endanger  the  permanency  of  the  Union.’’  Again  he  writes  : 
“  But  if  a  political  power  be  asserted  by  the  Federal  Govern¬ 
ment  which  is  controverted  by  a  State,  and  which  n fleets  the 
interest  of  such  State,  and  it  cannot  be  made  a  JudiGal  ques¬ 
tion  under  the  Constitution  or  laws  of  the  Union,  there  is  na 
tribunal  common  to  the  parties,  and  in  such  a  case  effect  can- 
'  not  be  given  to  the  power.  The  decision  of  a  sovereign  State 
in  such  a  case  is  as  good  as  the  decision  of  the  Federal  Gov¬ 
ernment,  and  of  necessitv  there  must  be  mutual  forbearance. 
An  uncoi^titutional  act  of  Congress  imposes  no  obligation  on 
a  State  or  the  people  of  a  State,  and  may  be  resisted  by  an 
individual  or  a  community.  Ho  one,  I  believe,  will  contro¬ 
vert  this.”  This  last  is  exactly  the  view  that  was  taken  by 
Chief- Justice  Parsons,  of  Massachusetts,  as  we  have  already 
seen  under  the  head  of  “  Massachusetts.”  The  whole  letter 
of  Judge  McLean  is  filled  with  just  such  sound  State  rights 
and  constitutional  doctrines.  And  now,  my  readers,  who  was 
Judge  McLean?  He  was  an  associate  justice  in  the  Supreme 
Court  of  the  United  States,  so  appointed  by  President  Jackson 
in  1829.  Kather  a  Whig  than  a  Democrat,  when  his  name 
was  suggested  by  a  friend  to  an  eminent  Whig  as  the  right 
man  for  the  Whigs  to  make  President  of  the  United  States  in 
1848,  he  replied:  “Do  not  wish  that;  Judge  McLean  is  canon- 


ized;  if  he  were  taken  away  from  the  Supreme  Court,  where  is 
the  guardian  of  the  Constitution  ?  ”  It  is  well  known  that 
there  were  other  such  guardians  on  and  off  the  Supreme  Bench 
at  the  time,  but  such  was  the  compliment  paid  to  the  virtue 
and  talents  of  the  Judge  in  that  day  after  a  trial  of  him  for 
seventeen  years.  His  whole  public  and  private  life  presented 
one  bright  page  of  ability,  integrity,  and  honor,  and  threw  a 
lustre  on  the  entire  profession  to  which  he  belonged. 

Pennsylvania. 

We  now  proceed  to  close  this  discussion  of  the  great  ques¬ 
tion  of  allegiance,  based  upon  the  actions  and  declarations  of 
our  Northern  sister  States  and  their  statesmen,  by  presenting 
a  few  extracts  from  the  public  speeches  of  some  of  the  eminent 
statesmen  and  judges  of  the  old  Quaker  State  the  great  State 
of  Pennsylvania — and  from  her  own  well-authenticated  public 

records. 

James  Wilson,  afterwards  one  of  the  supreme  judges  of  the 
United  States,  when  a  member  of  the  Convention  of  Pennsyl¬ 
vania,  in  endeavoring  to  persuade  the  people  of  Pennsylvania, 
there  assembled  through  their  representatives,  to  adopt  the 
Constitution,  said:  “Those  who  ordain  and  establish  have  the 
power,  if  they  think  proper,  to  repeal  and  annul.”  That  is, 
they  (the  people  of  Pennsylvania)  would  lose  non®  of  their 
sovereignty  by  the  act  of  ratification. 

The  celebrated  John  Dickinson,  of  the  same  State  (Penn¬ 
sylvania),  in  urging  the  people  of  the  old  thirteen  States  seve¬ 
rally  to  ratify  the  Constitution,  wrote :  “Why  should  we  be 
thus  alarmed,  when  we  know  that  the  rights  to  be  delegated 
by  the  several  States  to  the  Confederation  are  simple,  defined, 
and  so  limited  to  particular  objects  that  they  cannot  possibly 
be  applied  by  any  construction  to  other  objects,  without  such 
a  distortion  of  interpretation  and  such  a  violation  of  propriety 
as  must  oflend  every  sound  head  and  every  honest  heart.” 

Again  he  says,  in  the  same  written  address :  “As  some  persons 
seem  to  think  a  Bill  of  Bights  is  the  best  security  of  rights,  the 
sovereignties  of  the  several  States  have  this  best  security  by  the 


35 

proposed  Constitution,  and  more  than  this  best  security,  for  they 
are  not  barely  declared  to  be  rights,  but  are  taken  into  it  as 
component  parts  for  their  perpetual  preservation — by  themselves. 
In  short,  the  government  of  each  State  is,  and  is  to  be,  sover¬ 
eign  and  supreme  in  all  matters  that  relate  to  each  State  onlyJ^ 

Again,  in  speaking  of  the  interference  of  the  Federal  Govern¬ 
ment  with  the  respective  jurisdictions  of  the  several  States,  he 
says:  “An  instance  of  such  interference  with  regard  to  any 
single  State  will  be  a  dangerous  precedent  as  to  all^  and  there¬ 
fore  will  be  guarded  against  by  all,  as  the  trustees  or  servants 
of  the  several  States  will  not  dare,  if  they  retain  their  senses, 
so  to  violate  the  independent  sovereignty  of  their  respective 
States — that  justly  darling  object  of  American  affections — to  which 
they  are  responsible,  besides  being  engaged  by  all  the  charities 
of  life.” 

Again  he  says,  in  speaking  of  the  varied  representation  of 
sovereignties  and  people  in  the  Constitution  then  proposed: 
“It  has  been  said  that  this  representation  was  a  mere  compro¬ 
mise.  It  was  not  a  mere  compromise.  The  equal  representa¬ 
tion  of  each  State,  with  equal  suffrage  in  one  branch  of  the  legis¬ 
lature,  was  an  original  substantive  proposition,  made  in  the 
Convention  at  Philadelphia  in  1787,  very  soon  after  the  draft 
oflered  by  Virginia,  to  which  last-mentioned  ’State  United 
America  is  much  indebted  not  only  in  other  respects,  but  for 
her  merit  in  the  origination  and  prosecution  of  this  moment¬ 
ous  business. 

“  The  proposition  was  expressly  made  by  the  delegate  who 
brought  it  forward  upon  this  principle :  that  a  territory  of  such 
extent  as  that  of  United  America  could  not  be  safely  and  advan¬ 
tageously  governed  but  by  a  combination  of  republics,  each  retain¬ 
ing  all  the  rights  of  supreme  sovereignty,  exeegtinq  such  as 
ought  to  be  contributed  to  the  Union;  that  for  the  securer 
preservation  of  their  sovereignties  they  ought  to  be  represented 
in  a  body  by  themselves — meaning  the  Senate  of  the  United 
States — and  with  equal  suffrage;  and  that  they  would  be  anni¬ 
hilated  if  both  branches  of  the  legislature  were  to  be  formed 


36 


of  representatives  of  the  people  in  proportion  to  the  number 
of  inhabitants  in  each  State/’ 

Again  he  says  :  “America  is,  and  will  be,  divided  into  several 
sovereign  States,  each  possessing  every  power  proper  for  gov¬ 
erning  loithin  its  own  limits  for  its  own  jnirjjose^  and  also  for  acting 
as  a  memher  of  the  Union. 

“A  stroke,  a  touch  upon  any  part,”  he  says,  “  will  be  imme¬ 
diately  felt  by  the  whole.” 

AVhen  the  monarchists  of  the  Constitutional  Convention 
who  labored  for  the  destruction  of  State  sovereignty  had 
thrown  everything  into  confusion  and  downright  disorder,  and 
Dr.  Franklin  had  advised  the  Convention  to  go  to  praying, 
and  the  members  were  returning  home  in  despair  of  anything 
being  accomplished  but  mischief,  Gunning  Bedford,  a  noble 
patriot  of  the  State  of  Delaware,  turned  the  fortune  of  the  day 
by  warning  them  if  they  dared  to  touch  the  sovereignt}^  of  his 
State,  that  State  would  call  in  the  aid  of  foreign  powers  to  pro¬ 
tect  her  sovereignty ;  and  so  the  Constitution  passed,  explicitly 
recognizing  that  sovereignty  by  the  organization  of  the  Senate^ 
and  not  in  the  least  impairing  it  by  the  representation  of  the 
people  of  each  State  in  the  House  of  Representatives.  The 
sovereignty  and  equality  of  the  several  States  were  expressly 
guarded  by  that  clause  of  the  fifth  article  of  the  Constitution 
of  the  United  States  which  provides  “that  no  State,  without 
its  consent,  shall  be  deprived  of  its  equal  sufirage  in  the 
Senate.”  It  is  here  seen  that  while  all  other  rights  are  confided 
to  that  power  of  amendment  which  is  reposed  in  three-fourths 
of  all  the  States,  this  right  is  entrusted  only  to  the  separate,  in¬ 
dependent,  and  sovereign  will  of  each  State — each  State,  in  its 
own  case,  having  an  absolute  negative  upon  all  the  rest. 

If  we  look  to  the  Constitution  of  Pennsylvania,  September 
2,  1790,  article  8,  we  will  find  the  following  provision:  “Mem¬ 
bers  of  the  General  Assembly  and  all  officers — executive  and 
judicial — shaU  be  bound  by  oath,  or  affirmation,  to  support  the 
Constitution  of  this  Commonwealth,  and  to  perform  the  duties 
of  their  respective  offices  faithfully.”  Here,  then,  in  the  early 
history  of  her  State  Government  near  up  to  the  patriotic  times 


37 


:  of  the  Revolution  and  the  formation  and  adoption  of  the 

American  Constitution,  when  the  true  intent  and  interpreta- 
.  I  tion  of  that  instrument  was  best  known  to  her  and  understood 
,  I  by  all,  we  discover  her,  in  her  form  of  oath,  leaving  out  the 

'  Constitution  of  the  Union,  ignoring  the  ‘^G-eneral  Grovern- 
/  ment,”  and  demanding  for  her  citizens  exclusive  allegiance. 

•  V 

Her  first  Constitution  was  adopted  in  1776,  her  second  in  1790, 

.  and  her  third  in  1838. 

In  the  celebrated  case  of  Gideon  Olmstead  what  do  we 
observe  to  be  the  action  of  her  Governor,  Simon  Snyder,  in 
jyuTSuance  of  an  act  of  her  General  Assembly^  passed  on  the  2d 
day  of  April,  1803?  Among  other  things  in  his  military  order 
to  General  Michael  Bright,  commander  of  the  First  brigade 
of  the  First  division  of  the  Pennsylvania  militia,  the  Governor 
said : 

“  I,  Simon  Snyder,  Governor  of  the  said  Commonwealth, 
reposing  special  trust  and  confidence  in  you,  Michael  Bright, 
commander  of  the  First  brigade  of  the  First  division  of  the 
Pennsylvania  militia,  do  authorize  and  require  you  imme¬ 
diately  to  have  in  readiness  such  a  portion  of  the  militia  under 
your  command  as  shall  be  sutficient  for  the  purpose  expressed  » 
or di&Y,  and  to  employ  theni  to  defend  the  persons  and  prop¬ 
erty  of  the  said  Elizabeth  Sergeant  and  Esther  Waters /7’om 
and  against  any  p^rocess  founded  on  the  decree  of  the  said  Rich¬ 
ard  Peters  (United  States  judge),  and  in  virtue  of  which  any 
officer  under  the  direction  of  any  court  of  the  United,  States  may 
attempt  to  attach  either  the  persons  or  property  of  the  said  Eliz¬ 
abeth  Sergeant  and  Esther  Waters.’’ 

,  Does  not  this  action  of  the  chief  executive  ofiicer,  taken  by 

the  direction  of  her  Legislature,  clearly  establish  her  opinion 
to  be  that  she  was  the  sovereign  of  her  citizens,  to  whom  she 
owed  protection  against  the  “  General  Government,”  and  from 
whom  she  claimed  allegiance  in  return  for  that  protection  ?  If 
this  were  not  so,  what  other  ground  could  have  warranted  such 
a  stand  against  the  decree  of  the  General  Government  pro¬ 
nounced  through  one  of  its  courts”?  It  is  true  that  in  this 
particular  case  Pennsylvania  was  in  error  in  denyhig  to  the 


38 


Federal  courts  full  jurisdiction  in  admiralty  cases,  and  that 
she  gracefully  yielded  her  opposition.  But  in  obedience  to 
whose  opinion  did  she  abandon  her  high  position  ?  To  that 
of  her  distinguished  and  trusted  citizen  and  officer,  Chief- 
Justice  Tilghman,  who  in  his  day  was  regarded  as  one  of  the 
brightest  judicial  stars  in  America.  He  sustained  the  United 
States  courts  in  this  'particular  case,  we  all  know,  but  in  his 
opinion  he  fully  recognized  the  grand  principle  embodied  in  the 
act  of  the  General  Assembly  of  his  State  and  the  military 
order  of  the  Governor  thereof.  He  expressly  declared  that  in  a 
case  clearly  made  up  he  would  have  exercised,  in  the  name  of 
Pennsylvania,  control  over  the  prisoner,  Mrs.  Sergeant,  whose 
person  the  United  States  marshal,  by  an  evasion  of  General 
Bright  and  his  militia,  had  successfully  attached.  To  employ 
his  own  language  in  that  opinion,  he  said  that  the  State  courts 
should,  in  cases  brought  properly  before  them,  give  redress. 
There  is  no  law  which  forbids  it — their  oath  of  office  exacts  itd^ 
That  is,  defy  the  proceedings  of  the  General  Government 
against  the  citizens  of  Pennsylvania,  whose  sovereign  she  is 
and  to  whom  their  allegiance  is  due.  Again,  in  the  well- 
known  case  of  “  The  Commonwealth  vs.  Cobbett,^’  the  Supreme 
Court  of  Pennsylvania,  with  .  Chief-Justice  McKean  at  its 
head,  unanimously,  overruled  the  motion  of  the  defendant  to 
remove  his  case  into  the  Federal  court  on  the  ground  that  the 
sovereign  State  of  Pennsylvania  could  not,  on  account  of  its  dignity, 
be  carried  before  the  Federal  court.  This  grave  and  moment¬ 
ous  question  was  debated  in  the  Virginia  Convention  called  to 
consider  the  adoption  of  the  Constitution  of  the  United  States, 
as  proposed  to  the  several  States  by  the  general  convention  at 
Philadelphia,  by  Mason,  Madison,  Henry,  and  Marshall,  the 
ablest  of  American  statesmen.  Mason  and  Henry,  with  a 
sagacity  indeed  remarkable,  suggested  that  the  day  might  come 
when  a  Federal  court,  under  the  letter  of  the  Constitution,  might 
presume  to  summon  a  sovereign  State  to  its  bar  and  assume 
authority  to  sit  in  judgment  upon  her  rights.  Madison  and 
Marshall  opposed  the  idea  with  great  vehemence.  Marshall, 
afterwards  Chief-Justice  of  the  United  States  Supreme  Court 


bench,  actually  denounced  it  as  an  irrational  supposition  that 
the  sovereign  power  shall  be  dragged  before  a  court/’  Said  he  : 
“  I  hope  no  gentleman  will  think  that  a  State  will  be  called  at 
the  bar  of  the  Federal  court.”  This  was  precisely  the  ground 
taken  by  that  grand  old  man,  Governor  Hancock,  in  1793,  in 
respect  to  a  summons  of  the  Circuit  Court  of  the  United 
.  States  served  on  him  as  principal  officer  of  that  State,  and  in 
which  position  he  was  supported  by  the  Legislature  of  his 
State  and  endorsed  by  his  biographer,  John  Adams.  In  1812 
we  find  Governor  Strong,  of  Massachusetts,  occupying  similar 
ground.  In  the  case  of  Hunter  and  Martin,  3d  Dallas,  52, 
Judge  Koane,  of  Virginia,  alluding  to  the  case  of  Pennsylva¬ 
nia  and  Cobbett,  said  :  It  contains  no  principle  which  every 
friend  to  the  federative  system  of  government  will  not  readily 
subscribe  to ;  it  exhibits  no  sentiment  alarming  to  any  but 
the  friends  of  consolidation.”  This  decision  of  the  Supreme 
Court  of  Pennsylvania,  as  delivered  by  Chief- Justice  McKean, 
in  the  month  of  December,  1798,  may  be  found  in  3d  Dallas 
Reports,  page  473.  We  all  have  read  of  the  manner  in  which 
Pennsylvania  treated  an  excise  officer  of  the  United  States  in 
1791,  in  what  has  been  styled  her  ‘‘  Whiskey  Insurrection,” 
and  the  proceedings  of  her  Legislature  on  that  celebrated  occa¬ 
sion.  Here,  then,  was  the  sovereign  State  of  Pennsylvania, 
as  may  be  seen  from  the  extracts  which  we  have  made  from 
her  Constitution,  her  Legislature,  and  judicial  records,  claim¬ 
ing  the  allegiance  of  her  citizens  against  all  powers  whatsoever, 
and  taking  upon  herself  to  decide  what  was  the  extent  of  the 
Federal  authority.  In  fact,  we  find  that  every  State  in  this 
Union  which  had  at  any  time  prior  to  the  Civil  War  been  oj;- 
joressed  or  even  insulted  in  her  dignity  by  Federal  tyranny  had 
in  some  shape  or  other  invariably  asserted  this  her  sovereign 
right,  though  in  the  year  1861  it  was  and  has  since  then  been 
convenient  for  the  Korthern  States — always  claiming  it  for 
themselves,  however — to  forget  and  to  deny  its  existence  in  the 
Southern  States,  and  unconcernedly  or  interestedly  and  cruelly 
to  disregard  their  complaints  of  their  grievances  and  to  tram¬ 
ple  with  the  red  hoofs  of  war  upon  their  sacred  constitutional 


40 


and  reserved  rights.  And  we  see,  too,  that  the  honor  ot 
having  originated  this  American  doctrine  belongs  especially  to 
Pennsylvania,  Massachusetts,  and  Connecticut — honest  old 
Pennsylvania,  as.  she  used  to  he  called — the  land  of  Quakers 
and  of  peace  in  those  good  old-  days — being  the  parent. 

And  it  could  hardly  in  those  days  have  been  regarded  as  in¬ 
compatible  with  the  rights  or  the  safety  of  the  Pnion  or  it 
would  not  have  been  originated,  as  it  was,  by^  a  patriot  of 
1776 — Judge  Poss — who  was  one  of  the  delegates  of  Pennsyl¬ 
vania  that  signed  the  immortal  Declaration  of  Independence. 
The  SoutheVn  States,  then,  can  only  claim  to  divide  the  glory 
with  the  North  on  this  great  point.  We  have  now  gone 
through  with  our  account  of  some  of  the  principal  official  acts 
and  opinions  of  some  of  the  principal  of  our  Northern  sister 
States  in  support  of  the  action  taken  by  the  Southern  States, 
and  the  necessarily  consequent  conduct  of  those  of  their  citi¬ 
zens  who  happened  to  be  in  1861  in  the  immediate  service  of 
the  General  Government  of  the  United  States. 

In  the  historical  details,  as  well  as  in  our  comments,  we  have 
honestly  endeavored  to  pursue  the  good  advice  of  Othello  : 

Naught  extenuate,  nor  aught  set  down  in  malice.” 

And  we  have  especially  aimed  to  keep  in  mind  faithfully 
that  it  is  not  magnanimous  either  in  individuals  or  nations  to 
treasure  the  resentments  of  war  after  the  seal  of  peace  has 
been  affixed. 

“  A  brave  man  knows  no  malice,  but  at  once 
Forgets  in  peace  the  injuries  of  war. 

And  gives  his  direst  foe  a  friend’s  embrace.” 

Our  sole  object  has  been  truth — historical  truth — which  we 
hope  and  believe  we  have  steadily  followed  without  undue  bias 
or  one  grain  of  sectional  prejudice.  But  it  is  said  that  Gene¬ 
ral  Robert  E.  Lee  and  those  who  departed  with  him  from  the 
Federal  command  had  taken  each  for  himself  an  oath  to  sup¬ 
port  the  General  Government  of  the  United  States.  Well,  it 
is  true  that  they  did  swear  to  support  that  Government  in  its 
strict  pursuit  of  its  legitimate  ends  as  defined^by  the  Constitu- 


41 


tion  of  the  United  States,  and  as  might  be  interpreted  by 
their  respective  States,'  without  whose  authority  and  permis¬ 
sion  they  would  never  have  taken  such  an  oath  at  all.  It  was 
simply  an  oath  of  office  to  be  kept  only  so  long  as  the  incum¬ 
bent  remained  in  the  service,  and  carried  with  it  no  allegiance 
in  its  technical  sense ;  for  that,  as  we  have  seen  upon  the 
authority  of  Northern  States  and  statesmen,  belonged  exclusively 
to  their  respective  States.  Indeed,  were  those  officers  any 
other  than  representatives  of  their  several  States  in  the  army 
and  navy  which  belonged  to  those  States  in  common  with  the 
Northern  States  ?  Did  not  their  respective  States*supply  each 
its  proportionable  share  of  the  expenses  necessary  to  establish 
and  maintain  the  United  States  army  and  navy?  Does  anj^ 
man  or  set  of  men  suppose  for  an  instant  that  the  Southern 
States,  or  either  of  them, or  the  Northern  States,  or  either  of  them, 
furnished  men  and  money  and  property  to  their  general  agent 
and  servant  at  Washington — the  General  Government — with 
which  to  overrun  them  and  scatter  desolation  and  blood  and  ruin 
over  their  territory  and  population,  and  that  those  men,  who 
are  their  own  lojffi  citizens,  took  a  solemn  oath  upon  their 
consciences  with  any  such  intent  ?  The  idea  even  is  too  pre¬ 
posterous  for  the  credulity  of  the  most  simple-hearted  and 
credulous.  They  were  there  only  as  their  agents  to  carry  out 
their  behests  as  laid  down  in  the  compact  between  the  States, 
and  the  laws  made  by  Congress  in  pursuance  of  that  compact, 
and  subject  to  be  recalled  by  them  whenever  in  their  judgment 
that  compact  had  been  violated  in  letter  and  in  spirit. 

Daniel  Webster  declared  that  a  compact  broken  on  one 
part  is  broken  on  all,’’  and  proceeded  to  argue  that  if  the  North 
really  refused  to  execute  in  good  faith  that  clause  of  the  Con¬ 
stitution  which  provides  for  the  rendition  of  fugitive  slaves  the 
South  would  be  absolved  from  its  share  of  the  compact  of  the 
Union.  This,  it  is  well  known,  is  exactly  what  the  North  did 
do,  and  thus,  according  to  Mr.  Webster,  thereby  absolved  the 
South  from  all  obligation  to  observe  the  compact  between  the 
States  which  formed  the  Union.  And  this  very  refusal  on  the 
part  of  the  Northern  States  to  obey  the  constitutional  com- 


42 


pact  ill  that  particular  was  exercised* by  them  down  to  the  very 
beginnino;  of  the  great  civil  war  in  pursuance  of  their  ancient 
doctrine  of  State  sovereignty  and  State  allegiance  and  their 
peculiar  modern  doctrine  of  the  Higher  Law.” 

When  analvzed  we  find  that  the  oath  of  an  ofiicer  or  soldier 

%j 

of  the  United  States  army  and  navy  was,  after  all,  but  an  oath 
of  obedience  to  his  own  State,  to  whom  his  allegiance  was  alone 
due.  This,  we  think,  may  be  clearly  illustrated  by  a  supposed 
case — not  at  all  impossible.  Suppose  in  1861  the  Northern 
States  had  declined  to  make  war  on  the  Southern  Confederacy, 
but  had  corgtented  themselves  with  declaring  such  States  to  be 
simply  beyond  the  pale  of  the  Union — in  peace  friends,  in  war 
enemies — as  Wendell  Phillips,  Greeley,  and  others  of  their 
brain-men  counselled  them  to  do  ?  Where,  in  this  case,  would 
General  Lee  and  his  brave  fellow-otficers  in  the  old  army  and 
navy  hailing  from  the  Southern  States  have  been  found,  think 
you  ?  In  the  then  foreign  confederacy  of  the  Northern  States  ? 
We  cannot  believe  it.  Unquestionably  they  would  have  been 
found  in  the  new  confederacy  of  which  their  respective  States 
would  have  formed  a  part.  Would  this  have  been  pronounced 
'perjury  and  treason  on  their  part  to  the  old  United  States  Gov¬ 
ernment,  to  whom  they  had  taken  this  much-vaunted  oath  ? 
Surely,  surely  not.  But  again,  let  us  suppose  that  this  new 
Southern  Confederacy  had  afterwards  agreed  to  dissolve  itself 
into  as  many  distinct  governments  as  it  had  States,  where 
would  these  ofiicers  then  have  been  found?  Would  they  not 
have  abided  with  and  followed  their  respective  States  ? 
Would  not  the  same  have  been  true  of  the  ofiicers  of  the 
United  States  army  and  navy  from  the  respective  Northern 
States  in  the  event  of  a  final  dismemberment  of  the  United 
States  into  its  original  elements — the  States  ?  Does  not  this 
show  plainly  where  the  allegiance  of  the  citizen  of  a  State 
resides  ?  Does  it  not  prove  indisputably  that  in  all  possible 
changes  and  revolutions  it  belongs  to  his  State,  and  that  \yhile 
his  State  may  by  her  act  release  him  from  other  obligations  to 
which  she  has  subjected  him,  that  no  authority  here  below  can 
divest  his  State  of  his  obligations  to  her?  What  said  the 


43 


V 


Continental  Congress  upon  this  very  point  ?  We  will  remind 
you.  On  the  24th  of  June,  1776,  in  anticipation  of  the  Decla¬ 
ration  of  Independence  then  being  prepared,  the  Congress  de¬ 
clared  by  resolution  ‘‘  That  all  persons  abiding  within  any  of 
the  United  Colonies  and  deriving  protection  from  the  same 
owed  allegiance  to  the  said  laws,  and  were  members  of  such 
•  colony  ;  and  that  all  persons  passing  through  or  making  tem¬ 
porary  stay  in  any  of  the  Colonies,  being  entitled  to  the  pro¬ 
tection  of  the  laws  during  the  time  of  such  passage,  visitation, 

or  temporary  stay,  owed,  during  the  same,  allegiance  thereto^ 

« 

This  ought  to  be  conclusive  to  every  intelligent  and  impartial 
mind  that  the  duties  of  protection  and  allegiance  are  recipro¬ 
cal  ;  that  the  right  of  allegiance  belongs  to  the  sovereignty, 
and  the  right  of  protection  to  the  citizen  ;  that  every  citizen 
owes  obedience  to  the  laws  of  his  State,  and  is  entitled  there¬ 
for  to  protection  and  security  in  his  life  and  property. 

Reverdy  Johnson,  a  distinguished  Republican  senator,  and  a 
constitutional  lawyer  of  the  first  rank,  hailing  from  the  State 
of  Maryland,  said  on  the  11th  day  of  January,  1866  (months 
after  the  war),  in  the  United  States  Senate  :  I  am  sure  no 
member  of  the  Senate  would  doubt  that  there  is  no  power 
given  to  Congress  or  to  any  other  department  of  the  Govern¬ 
ment  to  make  war  against  any  State.’’  He  then  supported  his 
opinion  by  the  following  quotation  of  the  language  of  Justice 
Graham,  of  the  Supreme  Court  of  the  United  States  :  “  By 
the  Constitution  alone  Congress  has  the  power  to  declare  a 
national  or  foreign  war.  It  cannot  declare  war  against  a  State 
or  any  number  of  States  by  virtue  of  any  clause  in  the  Consti¬ 
tution.”  Senator  Johnson  adds:  “We  have  the  unanimous 
opinion  of  the  Supreme  Court  of  the  United  States  that  domes¬ 
tic  trouble  and  insurrection  and  refusal  to  obey  the  Constitu¬ 
tion  of  the  United  States  is  not  a  state  of  things  which  author-' 
izes  Congress  to  declare  war  against  the  State  in  which 
such  insurrection  exists^  It  is  not  a  condition  of  things  in 
which  the  President  has  any  power  to  carry  on  war  by  virtue 
of  the  war  power.”  It  cannot  now  be  said  that  it  was  a  war 
individuals  in  insurrection  merely;  for  the  proclama- 


44 


tioiis  of  President  Lincoln  and  the  acts  and  resolutions  of  both 
houses  of  Congress  were  declared  to  be  against  ‘‘  rebellious 
States,”  and  the  whole  bloody  and  illegal  and  unconstitutional 
power  wielded  hy  the  Federal  Government  was  aimed  at  the 
organic  life  of  the  States.  Instead  of  raising  by  executive 
proclamations  the  standard  of  civil  war  and  shedding  the  inno¬ 
cent  blood  of  his  oppressed  countrymen  who  simply  asserted 
the  sovereignty  of  their  respective  States  and  resisted  their 
prostration,  it  was  in  the  power  of  President  Lincoln  to  recom¬ 
mend  the  call  of  a  convention  of  the  States  of  the  IJnion  that 
formed  the  Constitution,  and  who  were  the  fit  and  proper 
judges  of  questions  involving  sovereignty  between  themselves 
as  sovereigns,  and  to  have  wisely  and  patriotically  invoked 
them,  as  the  most  exalted  tribunal  on  earth,  to  restore  the  Con¬ 
stitution  to  its  virgin  purity  and  to  bring  back  and  preserve 
the  Union  in  its  unsullied  brightness. 

This  peaceful  and  rightful  and  constitutional  remedy  the 
great  and  patriotic  Jefferson  would  have  advised  and  pursited. 

But,  no  !  exclaimed  Mr.  Lincoln.  The  Southern  States  are 

* 

in  rebellion ;  my  revenue  is  at  stake ;  they  must  be  put  down  !” 
And  thus  he  consecrated  his  usurpations  by  the  innocent  blood 
of  those  he  would  oppress.  State  constitutions  and  State  laws 
were  overthrown ;  State  legislatures  dispersed ;  State  archives 
seized  and  destroyed;  a  State  capital  wantonly  and  ruthlessly 
burned;  State  territory  torn  and  divided  and  a  new  State 
formed  out  of  it,  as  in  the  case  of  Virginia  and  West  Virginia, 
and  in  reckless  violation  of  the  Constitution  of  the  Union,  as 
we  have  already  shown  in  a  prior  part  of  this  discussion.  In¬ 
deed,  no  appliances  of  a  most  unjust  and  inexcusable  war 
against  States  were  left  unemployed,  notwithstanding  the  solemn 
declarations  and  decisions  of  lawyers,  statesmen,  patriots,  sov¬ 
ereign  States — Uorth  as  well  as  South — and  the  Supreme  Court 
of  the  United  States,  “  that  the  Constitution  gives  the  Federal 
Government  no  power  to  make  war  against  a  State.”  The 
Southern  States  in  ‘^Rebellion,’’  indeed !  Against  whom  did 
they  rebel  ?  Against  whom  could  they  have  rebelled  ?  Pebel- 
lion  means  the  resista^ice  by  an  inferior  to  the  lawful  authority 


45 


of  a  superior.  It  implies  the  violation  of  allegiance.  To  what 
power  did  the  Southern  States,  or  either  of  them,  owe  alle¬ 
giance?  The  very  idea  is  preposterous  and  utterly  inadmissi¬ 
ble  in  the  science  of  politics  that  a  sovereign  State  can  owe 
allegiance  to  any  earthly  power,  and  therefore  be  capable  of 
committing  treason,  rebellion,  or  any  crime  whatever  in  any 
.legal  or  political  sense.  The  idea  of  treason  or  any  other  crime 
whatever  carries  along  with  it  invariably  that  other  idea  of  a 
tribunal  before  which  the  culprit  can  be  arraigned.  Is  there  a 
conceivable  or  possible  tribunal  existing  anywhere  before  which 
a  sovereign  State  could  be  arraigned  and  tried  for  treason  or  rebel¬ 
lion  or  any  other  crime  in  the  calendar  of  crimes  ?  Surely  not. 
Ho  individual,  then,  who  obeyed  the  command  of  his  State  to 
resist  an  unconstitutional  invasion  by  President  Lincoln  and  his 
Congress  in  1861-’65  can  be  deemed  guilty  of  treason  or  per¬ 
jury,  or  both,  within  the  meaning  of  the  United  States  Consti¬ 
tution.  For  the  State  to  which  his  allegiance  was  due,  as  we 
have  shown  by  the  authority  of  Horthern  States  and  statesmen 
and  others  who  were  high  in  the  confidence  of  the  Lincoln 
administration,  had  not  given  the  Federal  Government — its 
own  creature — power  or  authority  to  coerce  her  by  arms,  and 
his  resistance  of  Federal  armed  coercion,  by  her  command, 
was  not  an  act  of  treason  against  the  United  States  Govern¬ 
ment  according  to  any  fair  interpretation  of  the  Constitution 
of  the  United  States,  and  which  fair  interpretation  we  have 
labored  to  arrive  at  and  to  present  to  you,  in  accordance  with 
the  true  and  fundamental  rule  of  all  statutory  construction,  and 
the  one  which  overrides  all  others,  which  is,  to  seek  the  inten¬ 
tion  of  the  legislators  wFo  framed  the  law. 

Mr.  .Blackstone,  in  his  Commentaries  (pages  59-60,  Volume 
I),  says :  “As  the  meaning  and  intention  of  the  Legislature, 
when  ascertained,  is  the  law  itself,  it  follows  necessarily  that 
such  intention  must  be  referred  to  the  time  of  its  enactment ; 
and  the  terms  and  language  used  to  express  the  intention  must 
be  taken  as  then  understood  by  those  who  employed  them,  and 
not  according  to  any  subsequent  definition  or  acceptation 
varying  from  the  then  settled^  received  meaning.’’  Again  he 


46 


saj'S,  page  70  :  subsequent  judge  can  alter  or  vary  from 

the  law  according  to  his  private  sentiments,  but  according  to 
the  known  laws  and  customs  of  the  land ;  not  delegated  to  pro¬ 
nounce  a  new  law,  but  to  maintain  and  expound  the  old  one.” 
And  these  rules  of  interpretation  as  laid  down  by  this  eminent 
legal  authority  have  been  ofttimes  affirmed  by  the  Supreme 
Court  of  the  United  States,  as  expressed  in  the  following 
words  of  Justice  Baldwin:  The  Constitution  ought,  there 
fore,  to  be  expounded,  as  all  such  grants  and  charters  are,  ac¬ 
cording  to  what  the  law  was  at  the  time  of  making  them.” 

The  illustrious  Jefferson  said  :  On  every  question  of  con¬ 
struction  carry  ourselves  back  to  the  time  when  the  Constitu¬ 
tion  was  adopted ;  recollect  the  spirit  manifested  in  the  debates, 
and  instead  of  trying  what  meaning  may  be  squeezed  out  of 
the  text  or  invented  against  it,  conform  to  the  probable  one  in 
which  it  was  passed.”  Yes,  let  all  concerned  do  this,  as  that 
wise  statesman  and  great  constitutional  lawyer  and  patriot  has 
advised  ;  look  to  the  explicit  contemporaneous  declarations  in  the 
convention  which  framed  the  Constitution  and  in  those  that 
ratified  it,  and  elsewhere  expressed  in  different  forms  of  lan¬ 
guage,  but  all  tending  to  the  same  conclusion,  and  we  ask  if 
there  can  be  a  doubt  left  on  the  mind  of  any  fair  and  reasona¬ 
ble  man  as  to  the  true  intent  of  the  framers  of  the  Constitution 
respecting  this  great  question  of  State  allegiance  and  its  recip¬ 
rocal  duty — State  protection? 

We  have  unfolded  ‘‘records  from  ancient  times  derived,” 
and  brought  out  into  the  light  of  the  present  day  doings  and 
sayings  of  the  leading  States  anfi  statesmen  of  the  Yorth  upon 
this  question,  to  point  out  their  inconsistency  in  ever  attempt¬ 
ing  in  the  past,  and  still  continuing  their  efforts  in  the  present 
day,  to  degrade  conduct  and  doctrines  which  they  in  a  large 
measure  originated  and  to  which  they  gave  currency  and 
authority  by  their  legally  authenticated  public  documents  and 
public  utterances.  We  have  gone  among  their  own  antique 
records  and  have  recited  therefrom  with  impartiality,  fidelity, 
and  accuracy,  we  hope  and  believe,  their  own  actions  and 
declarations,  in  successful  vindication  of  General  Robert  E.  Lee 


47 


and  his  comrades  who  retired  with  him  from  the  United  States 
army  and  navy  in  1861,  from  the  foulest  and  most  monstrous 
slanders  which  the  IS^orthern  people,  with  some  honorable  ex¬ 
ceptions,  in  the  very  prodigality  of  scandal  have  heaped  upon 
their  names  and  memories,  against  whom,  we  believe,  they 
•  were  never  heard  to  express  the  smallest  feeling  of  unkindness. 
It  is  true,  like  the  gallant  veterans  that  they  were,  they  made 
no  child’s  play  of  the  war  in  which  they  had  taken  up  defensive 
arms ;  but  their  weapons  were  not  dipped  in  poison,  nor  did 
thQy  stab  in  the  dark ;  they  asked  that  daylight  and  the  sun 
might  witness  their  victory,  or  grace  a  defeat  that  should,  at 
least,  be  undeserved.  They  flung  the  javelin  of  Achilles  with 
a  steady  hand,  but  it  was  with  hearts  free  from  all  malevolence 
and  guile.  When  the  battle  was  over  they  carried  no  reeking 
malevolence  in  the  ambush  of  their  own  bosoms  to  be  brought 
out  on  some  safer  occasion  for  vengeance.  It  was  not  for 
malice  or  for  vengeance  that  they  fought,  but  for  the  rightful 
sovereignty  and  freedom  of  their  respective  States,  to  whom 
their  allegiance  was  due. 

General  Egbert  Edward  Lee. 

Elustrious  and  loyal  Virginian !  When  in  the  spring-time 
of  the  ever-to-be-remembered  year  of  1861,  the  great  question 
arose  involuntarily  in  your  mind,  What  are  the  obligations 
which  the  action  of  my  old  mother  State,  Virginia,  creates  in 
me,  and  what  are  the  duties  I  am  thus  called  on  to  perform  ?  ” 
your  answer  could  not  be  slow  or  difficult!  To  you  who 
inherited  glory,  the  line  of  your  duty  was  instantly  prescribed. 

The  shades  of  your  patriotic  and  distinguished  Eevolutionary 
ancestors  appeared  to  your  vision  and  pointed  out  to  you  the 
only  path  w'hich  you  could  and  should  tread.  Among  the 
brave  and  patriotic  names  celebrated  in  the  early  councils  of 
Virginia  and  America,  not  one  is  invested  with  a  purer  lustre 
than  the  name  of  Lee.  It  is  radiant  all  over  with  the  glories 
of  the  Revolution  of  ’76.  And  it  has  been  most  eloquently 
said  of  the  reputation  of  Richard  Henry  Lee,  that  the  fame 
of  almost  all  his  distinguished  brothers  was  lost  in  the  bright- 


I 


} 


48 

ness  of  its  blaze.  It  has  been  illustrated  by  the  sword,  by  the 
pen,  and  by  the  tongue.’’  But  what  shall  be  said  of  the  repu¬ 
tation  of  one  of  his  illustrious  line — Eobert  Edward  Lee? 
Steeped  in  the  red  and  black  of  Treason  and  Perjury,  as  his 
enemies  declare  ?  What  monstrous  and  wicked  absurdity  and 
stupidity  to  think  it ! 

E^o  !  No  !  The  brightness  of  the  glory  of  Ei chard  Henry 
Lee,  in  the  character  and  fame  of  Eobert  Edward  Lee,  is 
awakened  as  if  with  accumulated  lustre,  shedding  a  splendor 
over  the  name  of  Lee  unknown  in  any  previous  age ! 


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